March, 2008

During the past month, the Greater Washington Society for Clinical Social Work has advocated strongly in the District of Columbia Council for a modification of the proposed Child Abuse and Neglect Investigation Record Access Amendment Act of 2008, Bill 17-247. This bill, introduced by Councilman Tommy Wells’ Committee on Human Services, would require all persons who are required by law to report child abuse or neglect (mandated reporters) to provide the Child and Family Services Agency (CFSA), upon request, with copies of “all records of a child who is the subject of a report of child abuse or neglect that are in the possession of the person or the person’s employees.”

Bill 17-247 goes to First Reading in the Council on Tuesday, April 1. The Society believes it imperative that mental health professionals be exempt from the record disclosure requirements. Following is the Society’s position paper.

Concerns Re: Bill 17-247

The Child Abuse and Neglect Investigation Record Access Amendment Act of 2008, Bill 17-247, has disturbing implications for all mental health professionals and their clients. As written, the measure threatens to undermine the therapeutic relationship between children or families and their therapists and opens the door to potential misuse of confidential information.

We urge the Council to take this opportunity to fashion an Act which truly protects the interests of children and families in mental health treatment.

Mental health records are traditionally kept under lock and key even in private therapy offices. HIPAA speaks of disclosing only the "minimum necessary information." The District of Columbia has an effective Mental Health Information Act which limits the data that a mental health professional may release. Our professional ethics mandate that we safeguard confidential records to protect the interests of our client. From the Committee Report on this bill, it is clear that there has been discussion of patient privacy, and some changes for the better have already been made. Still, however, what remains is a requirement that mandated reporters of abuse make all mental health records available on request when an abuse or neglect case is being investigated, with no standards for or limitations to the request.

Among the likely unintended consequences of this bill when applied to mental health records is that it will be difficult to prevent confidential information found in written records from being disclosed to harmful effect. For example, troubled dynamics in the family having nothing to do with the alleged abuse may appear as "background" information in a court report. The result is that the family feels violated by the mental health professional they had been trusting.

In many, perhaps most cases, the mere fact of disclosure of confidential records is likely have a chilling effect on, if not cause irreparable damage to the therapeutic relationship. Indeed, the very knowledge that records can be demanded by CFSA without a judicial process is likely to turn families and children away from needed therapy. (HIPAA regulations require mental health professionals to disclose the limits of confidentiality to the client at the inception of therapy.)

We join the Child and Family Services Agency and the Council in the desire to protect our most vulnerable children, and are hoping that in the next weeks we can work with you to find wording for this legislation which would support the intent of an investigation yet at the same time allow the trust between therapist and client to be maintained.

Susan Post, President
Margot Aronson, Vice President for Legislation and Advocacy