The Law Relating to Confidentiality for Minors

The laws relating to confidentiality and privilege for minors are often at odds and leave no clear indications of the rights of minors to confidentiality in psychotherapy.

Since 1990, one case has stood alone for the proposition that minors hold privilege for themselves. (In re Daniel C.H.) In 2001, that case was reaffirmed and the appellate court made clear that dependent children also hold privilege for themselves. ( In re Mark L.) Reference is made in the Mark L. case to Welfare and Institutions Code sections that allow an attorney to act as guardian ad litem for a dependent child.

Welfare and Institutions Code section 317, subsection (f), also makes clear that a child may override his or her own attorney in regard to waiving privilege. This is strong support for the holdings of the two court cases that children are the holder of privilege for themselves.

However, the implication of these cases is not addressed, and there is even law that seems to be to the contrary: if one holds privilege, that is, the right to maintain confidentiality in a court proceeding of that which was originally confidential, then there must be a right to confidentiality of the communication in the first place.

Other laws relating to releases of records place limitations protecting the confidentiality of the minor only when the child meets certain criteria. (Family Code section 6924) The case law, however, does not say privilege only applies when the provisions of Family Code section 6924 are met.

The law remains in conflict about the rights of minors to confidentiality in therapy. Best practice would suggest that the therapist make every effort to maintain the confidentiality of all children, including making the fact of that arrangement clear with the parents/care-givers at the outset. The holding in the Mark L. case may give good guidance: "We conclude the psychotherapist-patient privilege protects [the child's] confidential communications and details of the therapy, but does not preclude [the therapist] from giving circumscribed information to accomplish the information-gathering goal of therapy."

In re DANIEL C.H. (1990) 220 Cal.App.3d 814: This was a juvenile dependency (section 300) action in which the father had allegedly molested the minor son. The court wrote:

AWe believe that in a case such as this, where the father is accused of child molest, and the child is in therapy, presumably to deal with the emotional aftermath of the alleged molest, the accused parent should not be entitled to access to the communications made by the child to the therapist. The child has at stake a substantial privacy interest, and we can foresee substantial emotional harm to the child from a forced disclosure in these circumstances. @

It is established that the psychotherapist-patient privilege applies to the relationship between a dependent child and his or her therapist. ( In re Daniel C.H. (1990) 220 Cal. App. 3d 814, 828-829, 269 Cal. Rptr. 624; In re Eduardo A. (1989) 209 Cal. App. 3d 1038, 1041-1043, 261 Cal. Rptr. 68; Evid. Code, '' 1010 et seq.) "The purpose of the privilege is to protect the privacy of a patient's confidential communications to his [or her] psychotherapist. [Citations.]" ( In re Daniel C. H., supra, 220 Cal. App. 3d at p. 826.)

Under Evidence Code section 1013, the holder of the psychotherapist-patient privilege is "the patient when he [or she] has no guardian or conservator" or a "guardian or conservator of the patient when the patient has a guardian or conservator." (Evid. Code, ' 1013, subds. (a), Evid. Code, ' 1013, subds. (b).) Historically, the social worker in a dependency case was the child's guardian ad litem. (Former ' 326, repealed July 1, 2001 [Stats. 2000, ch. 450, ' 2, p. 2644].) ...

However, section 326 was repealed effective July 1, 2001. (Stats. 2000, ch. 450, ' 2, p. 2644.) The Legislature added Welf. & Inst. Code section 326.5, which provides that a dependent child's guardian ad litem "may be an attorney or a court-appointed special advocate. . . ."

We conclude the psychotherapist-patient privilege protects Mark's confidential communications and details of the therapy, but does not preclude Dr. Keller from giving circumscribed information to accomplish the information-gathering goal of therapy. (Evid. Code, ' 1012; In re Pedro M., supra, 81 Cal. App. 4th at pp. 554-555; In re Daniel C. H., supra, 220 Cal. App. 3d at pp. 829-830.)

Either the child or the counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to so consent, may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege; and if the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be holder of these privileges if the child is found by the court not to be of sufficient age and maturity to so consent. . . .

3. The minor would present a danger of serious physical or mental harm to self or others without the mental health treatment or counseling

Notwithstanding Section 5328 of the Welfare and Institutions Code, and except as provided in Sections 123115 and 123120, any adult patient of a health care provider, any minor patient authorized by law to consent to medical treatment [under Family Code §6924], and any patient representative shall be entitled to inspect patient records upon presenting to the health care provider a written request for those records and upon payment of reasonable clerical costs incurred in locating and making the records available. However, a patient who is a minor shall be entitled to inspect patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent. A health care provider shall permit this inspection during business hours within five working days after receipt of the written request. The inspection shall be conducted by the patient or patient's representative requesting the inspection, who may be accompanied by one other person of his or her choosing.

The representative of a minor shall not be entitled to inspect or obtain copies of the minor's patient records in either of the following circumstances:

(1) With respect to which the minor has a right of inspection under Section 123110.

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