Flow Chart, Treatment of Anxiety Disorders

Why Psychologists Should Care About Outcome Measurement

HIPAA Update: Security Rule

HIPAA and Standards
of Encryption

Childrens' Rights to Confidentiality of
Treatment Records and Interaction with HIPAA

Professional Liability
Insurance: Chapter 3,
"The Paper Office"

Professional Liability
Insurance: "Shopping Tips"

Professional Will

Responding to a
Subpoena

New Hampshire Supreme Court Ruling
Childrens' Rights to Privacy/Confidentiality
Loralie Lawson, PhD
14 December 2005

The New Hampshire Supreme Court recently issued a decision in a post-divorce case concerning childrens' rights to privacy/confidentiality, holding as follows: "The court has the authority to determine whether it is in the best interest of a child whose parents are in a parenting dispute to have confidential and privileged therapy records revealed to his/her parents. Parents do not have the exclusive right to assert or waive the therapist-patient privilege."

Remember, HIPAA federal regulations support a parent's access to his/her child's records/information. But state law trumps HIPAA if the state law is more restrictive.

This is a case in which the children lived with the mother and the parents had joint legal custody. The children did not visit the father as scheduled because they did not want to or the mother did not make them available. Mom got counseling for the kids to help deal with their resistance to visitation and their relationship with their father. Dad filed a contempt motion regarding visitation, mom cross-filed to modify the visitation schedule. Dad requested the therapy records and notes, stating he would find evidence of the mother's interference. The therapists refused, saying disclosure would not be in the best interests of the children. The Guardian ad Litem moved to seal the records.

The trial court denied the motion, ruling that the legal right of a custodial parent to see the records overrides the childrens' privacy rights, even if this "might objectively be looked upon as harmful to the children." There was an "interlocutory appeal" -- meaning that the trial court needed answers from the Supreme Court to questions before deciding the case. Three questions were sent to the Supreme Court:

1. Do children have a right to privacy for their medical records and communications?

2. Does the court have the authority to seal the therapy records of the parties' minor children when one parent demands access to the records for purposes of litigation?

3. Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records?

The NH Supreme Court answered all three questions in the affirmative: "parental rights are not absolute, but are subordinate to the State's parens patriae power." The trial court has the authority to determine if release of therapy records is in the child's best interests.

There was another statement made clearly in this decision regarding the therapist-client privilege: "The confidential relations and communications between any [licensed mental health practitioner] and such licensee's client are placed on the same basis as those provided by law between attorney and client...." In this case the Court applied this as well to children as clients.
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The above information is summarized from information provided by Honey Hastings, J.D. Her website is www.nhdivorce.com.

The Supreme Court Case is "In the Matter of Kathleen Berg & Eugene Berg" issued by the NH Supreme Court, 18 Oct. 2005. The entire opinion is available at www.nh.gov/judiciary/supreme/opinions/2005/berg112.htm.

Loralie Lawson, PhD
The Counseling Center of Nashua
One Main Street
Nashua, New Hampshire 03064
(603) 883-0005 x.308
DrLLawson@pobox.com