Transcription
Hi everyone, welcome to Improving Court Practices in Mental Health and Information Sharing. Thank you so much for spending the hour with us. I'm Rebecca Goudaman, I'm Senior Director of Health at the National Center for Youth Law. And one of the privileges I get in my position is I get to spend quite a bit of time looking at and understanding confidentiality and information sharing law, especially as it impacts healthcare access and outcomes. And I'm lucky enough today to be joined by Rob Waring. Rob is currently Of Counsel with Young Minds Advocacy. But prior to that, Rob spent many years at East Bay Children's Law Office representing youth in juvenile dependency. And Rob spent time crafting legislation related to mental health and privacy. He's published articles and engaged in some important appellate work on this same topic. So I'm really grateful that Rob agreed to be, uh, to share this presentation with me today.
Um, so just as a quick overview of what we're going to cover in this hour, we want to start by just taking a look at confidentiality and its role in good mental health outcomes. We'll then move to an overview of federal and state confidentiality and privilege laws. Um, uh, after that overview, and again, it is an overview because it's only an hour, we will move to a few case examples that allow us to lift up how these laws might work in practice in different case studies from dependency, family, and probate. And we'll close with recommended strategies for thinking about confidentiality and information sharing in a court setting from the perspective of how we can promote well-being. All right, and with that, I am going to pass it to my colleague Rob to start us off with why confidentiality matters.
Great, thanks so much, Rebecca. And as she's indicated, we have a lot of material to cover. Um, so mental health and well-being influence how people act, how they engage, and how well they are able to participate in court hearings. It's important to be aware of this and to approach information and questions with sensitivity. Both court proceedings and the underlying situations that lead to them can be highly emotional and traumatic events for children. Children subject to court jurisdiction likely have experienced one or more adverse childhood events, which we all know as the moniker ACEs. Divorce, guardianship, dependency, or delinquency can alter family structure, home environments, routines, and disrupt a child's sense of stability and control. Also, a parent's unmet mental health needs can create considerable stress for the child. All of this impacts mental well-being. In addition, many people before the court may be participating in or need mental or behavioral health services. Sometimes information about such services is directly relevant to court proceedings. There are questions about what can be brought in and how to do so with sensitivity to the integrity of therapeutic relationships. Not doing it well can have serious consequences on the quality of the court proceedings, but more critically, on the ultimate outcomes for the affected individuals, which is why we're all here. We don't have to tell you that we're working with a population of children who tend not to trust adults. This is behavior that's learned from their life experiences. Any situations in which an adult, either inadvertently or unknowingly through their actions, releases information that the youth did not want shared can embarrass them, impact their willingness to actively engage in treatment, and could have significant legal implications for their future. And it solidifies the idea that adults are not trustworthy. For our youth to best participate in and benefit from their treatment, they need to trust everyone in the process, from their therapist to their caseworker, from their judge to their doctor. When confidential information is released and trust fails, we decrease the likelihood that they will benefit from treatment. Previous webinars in this series addressed ACEs and best practices for supportive services. This webinar focuses on disclosures of information from mental health services.
So we go back, gosh, more than 2500 years now to the, uh, the birth and life of Hippocrates. He's the renowned physician, famous for defining the ethical principles of practicing medicine. These included recognition of the importance of confidentiality. Not attending to this often harms the patient. There are four main principles of medical ethics, and they are beneficence, non-maleficence, uh, sorry, um, and I had to get a dialect coach to help me with this, autonomy, and justice. So beneficence is the obligation to act for the benefit of the patient. Non-maleficence is the obligation not to harm the patient. Autonomy is that all persons should be encouraged to exercise their capacity for self-determination, and this is especially important for children whose sense of self-worth has been damaged. And justice, of course, is generally interpreted as fair, equitable, and appropriate treatment of persons. So research has consistently demonstrated the importance of confidentiality. We know then, the first point, uh, well, the first point is also known as the integrity of therapeutic relationships, which we'll refer to throughout this presentation. And we want those before the court to seek and engage in care. Finally, decades of research supports that patients are more forthcoming when communications are confidential. And this was the basis for the U.S. Supreme Court's creation of federal therapist-patient privilege in Jaffe v. Redmond in 1996.
Another way of looking at this is from what social worker and professor Brené Brown calls BRAVING. And these principles are that change requires openness to new ideas and to risk, which means you have to become vulnerable. And people don't become vulnerable with others without trust. Thus, trust is an essential element of the therapeutic process, and in recovering from trauma, and in becoming a functional adult. Establishing and maintaining confidentiality is essential to trust. Unfortunately, the court process can make it harder for people to trust professionals trying to help them. Finally, attorneys have a duty to ensure the best outcomes for their clients, including protecting the integrity of their therapeutic relationships. So a problem we all face in helping children and families we serve is that many of them have experiences in which their confidentiality was not protected. So their ability to make themselves vulnerable to change and trust, and to trust, is impaired. So where there are legal exceptions to confidentiality, these should be exercised cautiously and judiciously.
And now we go back to Rebecca. Thank you, Rob. So we are now going to transition into providing an overview of confidentiality and privilege law. Now, there are many different sources of confidential information. Health and mental health information can be held by different people or agencies. The information may come from the provider who directly engaged in that care, but we may be talking about information that's in another agency's file. Maybe they obtained it from the provider, and we're now trying to access it from that intermediary agency. Or maybe it's something we're looking for in testimony from a provider, from the patient, or from another person with direct knowledge, such as a caseworker or evaluator. Which laws apply may depend where that information is held and who holds it. Um, and so what we want to do today is start by looking at the laws that control information held directly by the healthcare provider who has originated the relationship. And then we will move on to look at what happens when that information moves to another agency or individual.
So when we're talking about information created by a healthcare provider, there are two independent legal barriers that shape when that information can be disclosed and when it must be produced. That's medical confidentiality statutes and evidentiary privilege. Oftentimes, we use the words confidentiality and privilege interchangeably, but it's really important to understand that they are two distinct concepts that apply at different times and in different ways, and we will talk about both of those. We're going to start by looking at confidentiality statutes. So we have laws at both the federal and state level that protect the confidentiality of health and mental health information. At the federal level, we have the Health Insurance Portability and Accountability Act, HIPAA. HIPAA sets a ground floor, a sort of baseline for confidentiality around the country, but it's critical to know that HIPAA defers to any more protective state laws. So, for example, California does have its own medical confidentiality laws, and in many cases, California law is more protective than HIPAA. So while folks may use the term HIPAA as shorthand to talk about medical confidentiality, it is important to know that what we often are talking about is actually our state law. And that's important because if we have any young people or families who may be coming from out of state, or were communicating with providers or agencies out of state, their confidentiality, their HIPAA may look a little bit different than, than what we follow here in California.
So at the state level, we have the California Confidentiality of Medical Information Act, which covers most medical and mental health information in the state, and we'll be talking about that quite a bit. But we also do have the Lanterman-Petris-Short Act, which includes a confidentiality provision that protects records of services within Lanterman-Petris-Short. So that includes voluntary and involuntary inpatient mental health hospitalization, hospitalization in county and state hospitals, conservatorship, and LPS developmental services. And it's also important to acknowledge that there are other laws and regulations at both the federal and state level that can apply depending on the type of care, the funding stream, or the provider. And one of the most important to uplift for today's purposes is federal substance use protection laws, 42 CFR Part 2, which we'll mention in a little bit. But to the extent that someone might be providing services or receiving services at a school site, FERPA, the Family Educational Rights and Privacy Act, is also an important law for us to understand, as it also may protect certain health records of services provided at a school.
All right, so let's look at what the general rule is under HIPAA, California Medical Information Act, and the Lanterman-Petris-Short Act. While each is distinct, they do have the same general principles, and that is that healthcare providers must protect the confidentiality of personal health information, so individually identifiable health information. And as a general rule, providers must have a signed authorization in order to share protected health information. And I'm using the word authorization, that is something that is used in HIPAA, but it's also a helpful word to distinguish from consent because sometimes we talk about consent to release information, but we can confuse consent to treatment with permission to release information. And in some situations, we may have one person authorized to consent to treatment to open the door to care, but somebody else holds the right to release information. So we want to keep those distinct. And so moving forward, I'm going to use the word authorization to mean permission to release information. It's also important to say that in all three of these statutes, there are exceptions that either allow or require a provider to just disclose information or records absent that signed authorization in certain circumstances.
So just as a visual of what I just said, information, once it's protected by these laws, there's really only three ways to get it out: either with a compliant authorization form, because an exception in the applicable law requires a release, or an exception in an applicable law allows release and the provider is exercising their discretion to share under that exception. Um, so let's talk about those authorizations. Um, under each of these laws, there are some specific requirements that an authorization must meet in order to be considered compliant, to be valid. I won't go through all of those, but I just want to lift up a couple of them. The release cannot be a compound document, meaning that we can't combine consent to treatment with release of information in the same signature. That would be considered conditioning services on releasing information. California Confidentiality of Medical Information Act requires releases to be in 14-point font. That is big, but in order to be valid, it needs to be in 14-point font. And there are a number of required notices that a release form must include to be valid. So this includes, for example, the right to revoke and how someone can revoke, the right to refuse to sign, and some advisements around potential for redisclosure once information is released to a third party.
Who signs that authorization? Adults and non-minor dependents will sign for themselves unless they are conserved. A minor must sign if records or information relates to services the minor can consent to or could have consented to otherwise. A parent or legal guardian signs. And we'll talk in just a second about what services minors can consent to in this state. Now, if you are talking about a dependent minor who is an out-of-home placement and it's not minor consent, we do have a special rule in that case. A parent or legal guardian cannot sign the release of mental health information unless the juvenile court has issued an order authorizing them to do so after finding that it would not be detrimental to the minor. And if no such order is in place, in those cases, the minor's dependency counsel can sign. So we're going to look at that a little bit more in just a sec, but so just keep that in the back of your mind. But as you can see, it's really important to know when minors may be able to consent their own care. We haven't included all of our state's minor consent laws here, but wanted to just lift up a couple. In our state, minors who are 12 or older may consent to outpatient mental health treatment when they are deemed mature enough to participate competently in the services by their provider. The provider is making that decision. Minors who are 12 or older can also consent to medical care related to diagnosis and treatment of substance use disorders. Now, these do not allow minors to consent to psychotropic medication. In that case, we still have parent consent or third-party consent if it's somebody where the court has given authority to consent to somebody else. Minors cannot consent to medication-assisted treatment for substance use disorders. So there are some limits around this. You can look, we have a, a teenhealthlaw.org. We have some resources that provide more details about each of these minor consent laws. And I also will flag that there are a number of other laws. So, for example, minors in our state can consent to general health care, including mental health care, when they are 15 or older, living apart from their parents, and managing their own financial affairs. And minors of any age can consent to pregnancy-related care, which can include contraception, abortion, prenatal, and postnatal care.
All right, so let's say though, we don't have that authorization. There are exceptions, as we said, that either require or allow disclosures. And so here are some of the examples of exceptions under the California Medical Information Act that require disclosure. So when there is a court order, when there's a subpoena or notice to appear, when it's specifically required by another law, for example, mandated child abuse reporting. If someone has a mandated reporter, they are required by law to disclose information relevant to making that report. That would be an example under this element in, in the California Confidentiality of Medical Information Act. Or when it's specifically requested by the patient. So when the patient asks for their own records, it's required disclosure. I do want to note that for a couple of those, you'll see a little asterisk. When we're talking about bringing information into a courtroom setting as evidence, we also need to think about privilege. And we'll talk about that in a little bit. So even if a disclosure is required under CMIA, privilege still may come into play and prevent that disclosure in the end. But as I said, we'll talk about that more in a little bit.
There also are exceptions that allow disclosure even absent signed release. And, and this is important because it's discretionary. So it gives the provider the choice whether to leverage this exception and share or not. They're not required to, but they're allowed to. And there are quite a few of these. But some examples are a treatment exception, care coordination, emergencies, when allowed by another law, and also for payment and healthcare operations in order to sort of continue the functioning of the services they're providing. We're going to look at two examples of what we call sort of these allowable discretionary disclosures in play right now.
So our first case is Janice. Um, so a pediatrician has assessed 14-year-old Janice, believes Janice may have depression, and would like to refer Janice to a community-based therapist. May the pediatrician share Janice's contact information and diagnosis with the community-based therapist, so her, or her, uh, her family's? So, of course, that can always be shared with a compliant authorization form, and that indeed would probably be best practice. But if for some reason that's impossible to get and time is of the essence, there is this treatment exception in HIPAA and in CMIA that says information can be disclosed by one healthcare provider to another licensed healthcare provider for purposes of diagnosis and treatment. And treatment is defined in a way to include referral. So while not required, the pediatrician could leverage this treatment exception to share information in order to make that warm handoff and connect Janice to care.
Uh, okay. Another case example. Sam has entered temporary foster care and has begun to receive therapy. Sam's about to be placed with an aunt in another county. And so Sam's caseworker, child welfare caseworker, wants to start him with a new therapist and ask the current therapist for case files in order to transfer this service delivery. May the therapist share Sam's case files with the caseworker for purposes of this transfer? So again, best practice, information can always be shared if there's an authorization. But there is an exception that may apply in this case. So both CMIA and Lanterman-Petris-Short include an exception that allows a provider to disclose mental health information to a county social worker, a probation officer, or any other person who's legally authorized to have custody or care of a minor for the purpose of coordinating health care services and medical treatment. Now, it's really important to flag, this isn't for, uh, in all cases. It's not any minor. In this case, minor means somebody who's been taken into temporary custody, or for whom a petition's been filed with the court, or who's been adjudged dependent or ward. So this is really about kids who are in the juvenile court process and, and helping facilitate care when their parents may not be immediately available. And the goal of this exception is to ensure that we can make space for timely and appropriate response to meet health needs of young people. Um, but it is very limited. It's important to note the exceptions and caveats that I have down below. So first, while a therapist, for example, in Sam's case, could share basic progress and diagnosis notes, um, there is, they have no ability to share psychotherapy notes, the detailed notes from any therapy provided. Second, nothing related to minor consent treatment can be shared. So this isn't a way to get around minor consent protections. Um, and then also importantly, um, the caseworker could not use this for other purposes. This information is being shared to coordinate care. But if, for example, the caseworker wants to use this information in a court report or for another purpose, they need to find a different way to get that information through an authorization or another mechanism. And so that's some of the redisclosure limits. And then, of course, it doesn't waive privilege. So also, to the extent that someone might want to use it in a court report or as evidence, we need to consider privilege.
All right, so that was really quick. We will look at application of these a little bit more in a second. But before we move on, I do want to flag 42 CFR Part 2, which is the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act. So this is our federal substance use confidentiality protections, and it is some of the most protective confidentiality regulations that we have in the country. Um, if it does apply, it restricts disclosure and use of patient-identifying information about individuals in substance use treatment. Um, just to flag some of the, sort of, the important points around protection, um, it really restricts providers from disclosing information unless there's a written authorization from the patient or a, sort of, a specialized court order with very few other exceptions and very limited exceptions. There are strict limits on redisclosure of information received, and importantly, includes rights for minors to control release of their own information. But it's important to note that it doesn't apply to every record that comes from substance use disorder treatment or records from every agency. So it's, it's really important to look at who is providing the service and see whether they are considered a program that's, that's the terminology used, a program under the definitions of this. And then if they are, then we need to be concerned with 42 CFR Part 2 to the extent that we're looking to share or access substance use, um, uh, records.
Now, let's say that we've had our mental health therapy engagement, we've created some records, the therapist has shared information with a third party. What happens when those health records are in that third party's file or in, in their agency records? Does HIPAA still apply? Let's talk about that. Um, so once a healthcare provider releases information, it may remain protected by CMIA or HIPAA or other applicable confidentiality law, but that really depends on which law was protecting the information, how it was released, so authorization under an exception, and who is holding it in the end. So, for example, if a healthcare provider is sharing information with another their healthcare provider, a healthcare provider who's subject to HIPAA and CMIA themselves, it's going to be protected by HIPAA and CMIA simply because the recipient is also subject to those rules. Um, but just an example of how this might play out. When information is protected by the California Confidentiality of Medical Information Act, those protections continue to attach to information that's shared if it's being shared via an authorization, or if it's being shared through one of the exceptions that allows disclosure but doesn't require it. CMIA does not attach to the information when it is shared if it's being released under one of the exceptions that require disclosure, which, as a reminder, includes by court order, subpoena, when it's being required by another law, or if it's by, uh, explicitly written request of the patient for receipt to the patient. Um, and then another example, when information is being protected by 42 CFR Part 2, no matter how it's being released, including through authorization to release information, there are very strict redisclosure limits that apply to whoever it is that's receiving the information.
So let's look at this, an example of this in play. So Bill and Ella are in family court fighting for custody of their daughter, Bella. As part of their previous history with child welfare, both Bill and Ella each had mental health evaluations. Both parents signed a CMIA-compliant authorization at the time, allowing their respective therapists to submit to child welfare a summary letter with protected mental health information. These letters are now in the child welfare file. Access to the child welfare file is protected by Welfare and Institutions Code 827. So we have to think both about CMIA and about whatever additional laws may apply to that recipient agency pursuant to Welfare and Institutions Code 827. However, a biological parent and their attorney do have a right to information in a child welfare file. So Dad now wants to see Ella, the mom's records, and use them in the family custody dispute. Does Dad have a right to access Mom's mental health information currently in the child welfare agency file of their shared daughter?
So let's walk through how to answer that. So this is a busy slide, but let's walk through it. Um, so in the previous example, the information is housed in a child welfare file, which is protected by WIC 827. WIC 827 strictly controls who may access information in a child welfare or a juvenile court file. So we start with the first question: Do any confidentiality rules limit access to information in the agency file? The, the folks we're focusing on, so in this case, the answer is yes, WIC 827 controls access to information in the child welfare agency file. So if the answer is yes, we go to question two. In this case, and the question is, does any exception in the applicable confidentiality law allow release to the third party? And in this case, as we noted previously, WIC 827 does allow biological parent and biological dad's attorney a right to access the child welfare file. Um, but what if the information the person, um, asking for information in that file were stepdad or Dad's criminal attorney? In that case, they don't have a right under WIC 827, and so we stop right there. Um, but since Dad does have a right to access, we now move to question three. In this case, the information in the child welfare file is still protected by CMIA because it was released pursuant to an authorization. So it cannot be released. Child welfare needs to honor CMIA, and it cannot be released except as dictated by CMIA. Um, so our question is, did that authorization include explicit permission for Dad to see Mom's records? If not, biological dad may not have a right to that, Mom's mental health information in the child welfare file, even though Dad has a right to see the file in general. And so this may be a situation where either child welfare needs to redact, we may need to have an in-camera review, but, but we need to have a process in place so Dad does not get that mental health information.
Um, all right. Now I'm going to pass it back to Rob to talk about the role of attorney. Thank you. We're going to focus on confidential, confidentiality laws that apply in a healthcare setting. Um, when we do this, we want to acknowledge that, um, there, there are many duties that attorneys have and others in the courtroom have that parallel and rest on similar foundations. So I just, I'm briefly displaying here Rule of Professional Conduct 1.6. I note that we don't have time to thoroughly go through this. This rule is distinct from provisions specific to dependency and family cases that may allow counsel to authorize others to disclose confidential information. Um, and a caution about the criminal act bodily harm exception. If you use it and you don't tell your client, you must withdraw from representation. That's, that's in the, in the rule. Um, take a look. Like most California rules, it mostly tracks the model rules, but there are key differences. So you must read the California version to be in compliance.
Next, uh, we're going to take a look at the second hurdle on the chart here. Robert, Rebecca has covered confidentiality rules for out-of-court releases of information. So we're going to talk about privilege, which is the second set of hurdles, and that concerns submitting confidential information as evidence in court. So the psychotherapist-patient, this is found in the Evidence Code. The, what's protected is in Evidence Code 1014. If there's a guardian conservator, that person holds the privilege. In dependency court, the minor holds the privilege and is presumed capable at the age of 12 years. Um, in family court, if there's a 3150 counsel appointed, that person holds the privilege on behalf of the minor. In family court, it belongs to the client, not to the professional. The privilege, I mean, in, in these cases, or whoever holds privilege, it is not the professional. Um, but when the patient holds privilege, um, or some other person holds privilege, providers are required to raise privilege on behalf of their clients unless it's been clearly waived in court. Privilege stands without an affirmative need to openly assert it, without, assume, without recognizing that, uh, it is presumed to be privileged if it's coming, if it's a confidential therapist-patient or doctor-patient communication. So there are some exceptions here, of course. Um, court-ordered evaluations would include WIC, Welfare and Institutions Code 357, 705, and 7-11 evaluations. Um, a non-minor dependent in the patient litigant, litigant exception does not waive privilege by submitting a category 5 letter. Competence is obviously an exception. Um, and a note about the child under the age of 16, Evidence Code 1027. We could only find four cases that cite this statute. The most recent one dates to the 1990s. It's not mentioned in any of the dependency cases in this century that deal with privilege, despite children having been victims of child abuse. And finally, the dangerous to self or other disclosure exception. This is very fact-specific, and the question of what is a risk of future harm is, by its nature, subjective. Um, and there are some cases on this that are worth looking into, uh, if you have questions.
Some caveats about therapist-patient privilege and juvenile court. It's been subject to court opinions that, for more than 20 years ago, have been undermined by a California Supreme Court opinion in 2013 that disapproved of their rationale. Um, it's People v. Gonzalez, an interesting case, and I encourage you to read it. Since then, the legislature has importantly emphasized the importance of privilege in ensuring that foster children can be completely honest with their treatment professionals. And in addition to privilege protection, the legislature, as Rebecca was describing earlier, has also limited the ability of therapists to provide information where that information would be available to parents whose children have been placed in foster care, unless there's been a court order based on an individualized finding of no detriment to the child. So if, if one is considering a motion or subpoena regarding privileged information in juvenile court, those earlier cases I mentioned held that a court order can, that a court can order a therapist to disclose circumscribed information that would aid the court in decision-making, only if there is a hearing at which an individualized need is shown. In dependency cases, there must be no other way to obtain the information, such as by ordering an independent evaluation or some other investigative effort.
So let's look at, uh, now a next slide here, and we're going to go into some examples. At first, in dependency. So we have two siblings here, removed from their parents, and they're both seeing a therapist. And the question is, who can get access to that information? So a key distinction between the siblings that applies across a range of proceedings, different types of proceedings that we're covering here today, is defined in Family Code 669-24 and Health and Safety 124260. Rebecca covered it earlier. If you're age 12 or older and in the opinion of the mental health provider, able to participate intelligently in treatment, another key concept to remember is that for control over access to confidential information, what matters is whether the minor could have consented to the treatment and not whether they actually signed the consent form. Also, with the exception of involuntary commitment and LPS cases, the California Confidential Medical Information Act, CMIA, is not in the Welfare and Institutions or Probate Code. You have to look in the Civil Health and Safety or Family Code statutes.
So now may the caseworker or Mom receive that confidential information? If we first look at Georgia, who is under the age of 12 and has been removed. So the provider could decide to share information with the caseworker or the resource parent or both to the extent necessary, and that doesn't necessarily mean the entire case file, as Rebecca noted, for coordination of treatment and care. The parents cannot sign the ROI absent a court order after a finding not detrimental. Mental, if, if there, unless there is such an order, minor's counsel would be the one to sign after consultation, if counsel believes it's in the minor's best interest. It, because the siblings have been removed from the parents, there's no information sharing pursuant to Health and Safety 123116 unless there's a court order finding it would not be detrimental. If, if there is no such order, we don't know of any case law, uh, that cites an example of lack of detriment in this situation. We believe this can include if the minor, the provider, and minor's counsel agree that the integrity of the therapeutic relationship would not be harmed by disclosures to the parents, and of course, the court would have to agree and sign an order to that effect as well. Finally, privilege applies with minor's counsel holding it.
So moving on to Tisha, who's 12 or older and, uh, is deemed, has been deemed, uh, able to participate intelligently in treatment. There's no care and coordination, treatment and coordination, exception, uh, here. The minor could sign the ROI if she wanted to, but it's best to have the minor have an opportunity to consult with counsel before signing. Because Tisha has been removed from her parents, same as with her sister, unless there's been a court order finding of not detrimental, also Tisha would have to sign an ROI. Privilege applies, and Tisha would hold the privilege. It's best, again, for the minor to have an opportunity to consult with counsel before waiving privilege, given the complexities of the court process.
Finally, some, the next slide, some differences with delinquency. In delinquency cases, there are no restrictions on sharing the mental information, mental health information with the parents that we described in dependency court, other than the CMIA provisions holding that if the youth is able to participate intelligently in treatment, then the youth holds the sharing rights. There's no exception about privilege rights as there is in dependency court. Parents hold those privileged rights. They're presumed to hold it. Finally, there's a paradox in that the court can order treatment as a condition of probation, but because of CMIA, the minor still has to consent to that treatment. And this can be tricky for a provider who's trying to sort this out to navigate. So we'll move on now to a family court example.
Sean's at the center of a custody dispute. He's been, he's suffered from anxiety for several years. The parents each believe their confidential communications, that sorry, that the confidential communications between Sean and Sean's therapist would support their positions. So how could the court handle subpoenas for Sean's therapist to testify? So, so several questions. Do the parents have a right to access their child's mental health information? Well, they do, unless Sean is 12 or older and in the opinion of the provider, able to participate intelligently in the treatment. And if so, Sean controls. So who can claim or waive therapist-patient privilege for Sean? Well, the parents. But what if they disagree, or if the court is concerned about the impact on Sean? One strategy the court might consider is on the next slide, which, as many of you know, supporting is appointing 3150 counsel. There are provisions in the Family Code which describe when to do this. Health treatment, if health or treatment is concerned, if there's a disputed issue, if it furthers the best interest of the child. Counsel has a number of responsibilities and powers, presenting the child's best wishes to the court. Counsel does have access to the confidential medical and educational records of the child pursuant to some of these, uh, confidentiality provisions I mentioned earlier in the rule of professional conduct. And, uh, the counsel has the right to assert or waive any privilege on behalf of the child.
Now, one question is, uh, what do you do if counsel wants to inspect the welfare, the dependency court file? Well, 827 has an exception. But if counsel wants to look at the agency's records, the Child and Family Services Agency, then they have to request an in-camera review of court records. Uh, and the court makes that decision. Uh, finally, the court shall not disclose the contents or existence of the reports or files to anyone unless permitted by law, which is the redisclosure rule that applies in so many instances. And I'll take it back to Rebecca now.
Thank you. Thank you, Rob. Our final case is a probate example, and, uh, there are a couple layers of facts here, so let's just read through it. So again, we have two siblings. We have Tico and Luis. Tico is 18 and is now petitioning for guardianship of his younger brother. Both boys were removed from their parents' custody by the dependency court for a brief period in the past, though they were ultimately returned. But that means that they do have a child welfare file, and that file includes information with mental health assessments and needs for both boys. Luis is still seeing a therapist, and the probate court investigator would like to review the, uh, the dependency file. So our questions are, may the investigator get any information from that file? And what, if anything, should or should not be submitted to the court?
So probate, uh, 1513 does require the investigator's report to include assessments of psychological needs and the capability of the petitioner to meet those needs. All reports by the investigator are confidential, but they are made available to all persons served, as well as their attorneys. So the investigator does need to both look for this kind of information, but also be sensitive to what is being included in the report because of who it ultimately will be disclosing information to. Um, uh, all right. But let's just look at the technical, sort of, how does this information move to that investigator? So we're going to go back to my favorite, uh, chart here and walk through because again, in the end, what we're talking about is mental health information that is being held in another agency's file. So again, in this case, the information is housed in a child welfare file, which is protected by Welfare and Institutions Code 827. So our first question is, is it protected? Yes. Um, and so our question is, does the probate investigator have a right to see the information in the child welfare agency file? 827 does explicitly authorize investigators actively participating in a guardianship case to review a child welfare agency file. So then we go to question three. In this case, the information in the child welfare file may well still be protected by CMIA, but we don't know. It depends how child welfare got that information about the mental health assessments and services provided to both Luis and his brother. So we need to understand, and it may be child welfare agency's duty to look at whether CMIA still applies to this information, and if it does, whether the investigator has the ability to access that information without getting, uh, an authorization from the original person with the right to sign that authorization.
Um, now let's say, for some reason, CMIA doesn't apply, and the, and the child, excuse me, the probate investigator is allowed to see this information. This is where the investigator, you know, maybe decides it is really important that both Luis and Tico get additional mental health support. One of the questions is, how can this information be conveyed in a report in a way that is sensitive to some of the trust issues and confidentiality concerns that were named up front? And we'll talk in a little bit about some best practices. But even where it is appropriate and important to share that information, there are strategies that you might be able to use to help be sensitive to sort of disclosures in a courtroom setting and to what it means to put things in reports that may be available to a much broader audience than just, for example, the hearing officer. Um, now the other thing to consider is that the information, uh, the child welfare agency may not be able to share this information. And so the investigator may need to consider other alternative ways to access relevant information about mental health needs, including going back to the direct source of the information or conversations with Luis and Tico themselves.
Uh, all right. So, uh, just to keep us moving, we now want to transition to talking about some of those best practices, and I'm going to pass it back to Rob to start us off.
Thank you. This is a review of some of the key principles from the first part of the presentation. Um, and the key components of trauma-informed practice are: Number one, safety. Number two, trustworthiness and transparency. Some of these things go back to Brené Brown's, uh, BRAVING and vulnerability, um, concerns. Um, understanding cultural, historic, and gender issues, collaboration and respecting mutuality, peer support, empowerment, voice, and choice. And if anything from the presentation today should go on a three-by-five card that we look at periodically, I would recommend, I would vote for this particular slide. And just to review the, uh, BRAVING elements from our earlier slide. You have to be vulnerable in order to change. To be vulnerable, you have to trust. In order to build trusting relationships, uh, it's essential, uh, in therapy, in therapy, building trusting relationships, and for recovering from trauma and becoming a functional adult. Um, confidentiality is essential to trust, and the court process can make it harder for people to trust professionals. Attorneys have a duty to protect the integrity of their clients' therapeutic relationships. Thank you.
So now what we'd like to do is take some of these general principles and see what that might mean in practice. What it means to create a trauma-informed, conflict, confidentiality, and information sharing practice for a courtroom. The laws that we've just, uh, discussed today sort of set a ground floor about what we're allowed to do and what we're prohibited from doing, but as these two previous slides that Rob just reviewed highlight, it's about so much more. So the, the points and suggestions we're about to put forward are really about how do we interweave what the law allows us to do with what we know is best practice when it comes to trauma-informed care and really trying to ensure the best mental health well-being for both young people and for their families possible. Um, so we know that it's important to have information available about both mental health needs and well-being in different cases and in different courtroom scenarios, but it is possible to keep trust and awareness of trauma in mind even as we're trying to meet those needs.
So just a few tips. Um, often, uh, so first, limiting discussion of specific mental health issues in open court. Often, individuals involved in court may need access to mental health services or information, um, uh, for different purposes that might include investigators, evaluators, caseworkers, or family. But one question is, how much of this needs to come into the courtroom and into the hearing? So our recommendation is to limit discussions of specifics to really need to know what absolutely has to be part of that court hearing. That doesn't mean you can't ask about general well-being or encourage people to seek support, um, but to the extent that we can limit disclosures of specific needs or diagnoses, um, in a courtroom setting, especially one that may be open to the general public, we are, that is a better, uh, trauma-informed practice. So again, sometimes a judge or hearing officer needs information about treatment, about unmet needs, about prognosis. There are different ways to convey this information. Consider what makes sense given the sensitivity of the information and where it will be recorded. Are there other ways to convey it? For example, through an in-camera review of a file or through other modes to get the information appropriately to the hearing officer or to the judge. What is need to know? Sometimes we ask, everybody thinks they need to know everything. So really think about what you need to know. It may be all you need to know is that someone is attending therapy and is making progress. You don't need to know details about their diagnosis or about the nightmares that they've been having that have led them to have some anxiety. As long as you know that there is somebody working with them that they're progressing, maybe that's all you need to know. There might be times where you need more detail, but think carefully about how much is important and relevant given the hearing setting and the, um, the what's happening in court right now.
Um, when information will be shared, let the youth and family know ahead of time. Describe who will know, describe who will see it, and describe how it will be protected. This goes back to trauma-informed practice around transparency and giving people a little bit of a sense of control. Understanding, uh, what might happen, even if they can't make a decision about it, helps to give them a little bit more ownership and feel like they've got a little bit more control. As we saw, many confidentiality and privilege laws center seeking authorization. There are exceptions that allow disclosure without getting permission, but whenever possible, it's really helpful and important to ask for permission to share or access information as a way to give the patient voice and choice. Obtaining knowing and informed authorization from the youth or from their representative, or when it comes to waiving privilege, both can ensure compliance with state and federal law, but it also encourages and promotes transparent communication and, as Rob has said, feelings of safety, trust, and control.
Um, we also want to uplift number 0.6, be ready to order redactions. This not only ensures compliance with privilege law in particular, but it's a great signal to the people in your courtroom that you take this seriously and that you're someone that can be trusted. And we flagged that one of the important points for trauma-informed practice is recognizing the role of culture, history, and gender. That's really important. For example, women who've experienced domestic violence may be particularly sensitive and careful about records related to treatment and recovery and how those records might be exposed or used against them by their abuser. So another example, families who identify as Black or African-American or Latino may worry about seeking care because they worry that sensitive health information being documented or shared could be twisted and used against them to break up their families. And that's based on, sort of, historical recognition in their community about ways that healthcare providers have failed them in trust in the past. And so trust is particularly important to build up in those cases. Um, and then finally, we wanted to say that this isn't just about disclosure of information. Um, sometimes we can avoid issues of this coming up in court if we think ahead about where disclosure challenges may arise. So, for example, if you're setting up treatment-related conditions or goals that you know will necessarily implicate records, you know that you're going to need to check in and make sure that people are actually getting the services that they're being asked to get. Talk up front about who needs what information and how much, and discuss ahead of time so that everybody around the room, the attorneys, the parents, the children, the court, understand the expectations, whose signature is necessary, how much information is being disclosed. That will really avoid problems down the road when it's suddenly time to come back to court. As another example, transitions, whether it's a custody transition or a placement change or a school change or provider change, those kinds of transitions implicate transfers of information. So if you know those are going to be coming up, be ready to discuss how to sensitively approach and explain how that information will be moved, how much information needs to be moved, who needs to be part of that. Talking about it ahead of time can avoid some of the challenges to trust, control, ownership, and voice and choice that we just talked about.
All right, so that is the, and Rob, did you have any final words that you wanted to include before we close?
Thank you, Rebecca. Um, just that, uh, a previous training we did on child and family teams, um, with the Judicial Council, is available now on J-CAT. That was on January 30th. So if anybody wants some, some detail on that, on privacy in that setting, that's, that's where to go for it.
All right, thank you everyone for joining us today. We appreciate your time.