Therapist violates confidentiality. Any laws applicable? A friend is doing counseling as a domestic violence victim at a domestic violence aid agency. The therapist recently disclosed her information, including what they have talked about in counseling sessions, to other people in the agency. Being confronted, the therapist pointed the finger back and accused her of false things and refused to see her again. We would like to know if there are laws and regulations applicable in this situation. Are there federal level regulations applicable in this situation? The agency is responding indifferently. We are considering filing a complaint with the state board of psychology. We found several possible names on the state's professional licensing website, but can't be sure which one is the therapist, since the therapist keeps her full name from us.
We're missing a lot of information that we'd need to offer a full answer. Here are some of the things that will probably drive the analysis: the type of counselor we're talking about; the types of information the counselor disclosed; the reason she disclosed it; the job functions of the people to whom she disclosed it; the reason the client is bothered by the disclosure. Generally speaking, a mental-health counselor has a fiduciary duty to maintain the confidentiality of patient information, but my understanding is that in most cases, the counselor would be allowed to discuss a case with colleagues for the purposes of advancing the patient's treatment. So discussing the facts of a tough case with a supervisor is not going to be as problematic as idly gossiping about clients with custodial staff. Beyond the permitted disclosures, there are also situations in which counselors are required to disclose confidential information, including cases where the counselor suspects child or elder abuse or where the counselor believes the client poses a danger to herself or others. If the disclosure was truly not permitted, then it may be that the client has a claim for breach of fiduciary duty. In Georgia, proving that case requires evidence that: That the counselor had information relating to the client that she knew or should have known was confidential; That the counselor communicated the client’s confidential information to third parties; That the client did not give informed consent to the counselor’s conduct; That the confidential information was not a matter of general knowledge; and That the disclosure harmed the client. As you noted, the client could also file a complaint with the state licensing board. I don't know of any federal laws or regulations that would come into play in the situation you've described.
The regulations known as HIPAA are here. A good place to start is with who the regulations apply to. §160.10 lays that out: a health plan, health care clearinghouse, care provider, their business associates, and the Inspector General. Family members are not regulated entities. Subpart E regulates individually identifiable health information (such as "person X has condition Y") – this is protected information. §164.502 states that A covered entity or business associate may not use or disclose protected health information except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. The first permitted use / disclosure is that the information may be revealed to the individual (the individual). Under 164.502(a)(2)(1) they are required to reveal information to an individual "when requested under, and required by §164.524 or §164.528" (you have a right to see your own record; you have a right to know who knows). 164.502(g) requires the covered entity to treat the "Personal Representative" as the same as the individual, and then there is a list of conditions surrounding being a personal representative, reducing to being empowered under law to act on behalf of the individual in making health decisions (it gets complicated in dealing with minors). 164.510 covers disclosure in emergencies, and under (b)(2) allows disclosure to a family member with advance consent of the individual. And so on. There is no general rule "and the covered entity may / must reveal private information to an interested individual", even a spouse, without consent of the individual. In other words, the doctor has an obligation to not disclose this information, unless permitted by the individual.
This depends entirely on STATE law, and you need to list the state(s) you are interested in in the question. Thus, the usual legal statement "it depends." POLICE ARE NOT ATTORNEYS Don't accept legal advice from the police at face value. Police frequently don't actually know the minutiae of the law, and/or often misunderstand it. Their job is not to provide legal advice nor legal judgement, their job is to enforce the law based on certain priorities. Thus the area of enforcement is usually narrowed to specific categories so they can be experts in that area. (I.e vice cops, bunko squad, homicide division, etc.) But police are not lawyers, so don't expect them to understand the law. They did not attend 3 years of law school after attaining a college degree, which lawyers DO. Police get as little as 3 months training (in some states like Arkansas they can be put on duty without ANY training for up to a year (!) before attending the academy). THAT SAID, REGARDING CALL RECORDINGS: There are single and two party states. In single party states, any single person who is part of a call or communication can record it. In "two party" states, everyone that is part of the call must be informed. There are numerous exceptions and stipulations however. GREAT EXPECTATIONS First off, is there an "expectation of privacy." Again this varies by state and case law. Generally, if there is no expectation of privacy, then there is a clear exception to record. For instance, if you are in a busy restaurant, and people around you can hear or eavesdrop, you have no expectation of privacy. Courts have also ruled that if you are in the presence of a police officer performing official duties, there is also no expectation of privacy (not for either of you). IS IT LIVE OR IS IT MEMOREX Are you being recorded? If you are in a two/all party state, and you have an expectation of privacy (a phone call made in your home) then one of the following must occur: If the police are recording you without your knowledge, they must have a court order permitting them to do so as part of an investigation. Otherwise you must be notified with a statement at the beginning of the call that the call is being recorded. (Typically your option is to hang up or continue. Continuing the call implies your consent.) In some states the notification can be in the form of a "duck" or a beep every 15 seconds (time period varies, this is also different per state). OPINION NOT ADVICE BELOW I would think that being notified that a call is being recorded ends any expectation of privacy for any involved party. Assuming the state law and related case law supports recording when there is no expectation of privacy, this circumstance would seem to permit recording legally. Doubly so if your were talking to police in official capacity (did you notice a beep every xx seconds?) CAUTION: Because this varies so much by state, and because even the various Federal District Courts are not in unanimous agreement on the minutiae, there may be other factors to consider.
1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? Yes. If they don't want you to, you cannot talk to a friend, only a lawyer. If you got an OUI, and you're not being a jerk, they will probably let you talk to whomever you want (within reason &ndash; it's not social hour). However, they can keep you from speaking to anyone but a lawyer as that person could gain information from you that can corrupt their investigation. (E.g., they arrest you with 10 lbs. of methamphetamine. They know it's "fresh" and likely came from a local lab that they suspect you of running. You cannot be allowed to talk to just anyone, as they could help get the lab broke down, moved, destroyed). In TV shows you see attorneys doing this type of illicit thing, but in reality that is very rare. When you enter the police station to speak with a client, you must present your bar card (license to practice). Friends are not allowed in, even if you value their counsel &ndash; they are not counselors! 2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? No. You can have your entire legal team with you, while preparing for court, or while being questioned, within reason. They do not need to rent a conference room to fit your 30 person legal team, but if you want 3 or so lawyers in with you, and you can afford paying each $250-$500 per hour, then have at it. Most lawyers would counsel you against this, as it creates an undue impression of limitless (hence likely illegal) funds. (But if you're a hedge fund manager, and you can show your money is legally earned, it's really your choice.) I have had occasion to go in to meet a client with co-counsel numerous times (especially in early years of practice when there is a lead attorney and second chair, so to speak, even for interrogation (which means silence by the client). They can "impede" access to some extent, though they typically don't. They can play games with your lawyer and make them wait and make you wait, but not while they are in with you, and only for so long. Once your lawyer arrives they should leave you alone. (Some courts say once you ask for counsel they need to leave you alone, but this only really matters if they get a confession from you (or any evidence) before you've (and this is what they're hoping for) recant your request for counsel and your right to remain silent.) 3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? Once you've called your lawyer, they need to to let him or her meet with you for a reasonable amount of time before questioning. This is typically a quick meeting, just long enough to make sure you will not say a word. Even completely innocent people should keep their mouth shut &ndash; innocent people do occasionally get arrested and convicted! No matter what the police say, there is no benefit, ever, from talking to them. Some police, who know it's their last shot to get a confession and know once your lawyer gets there will never talk to you again (and they have enough to go forward without your confession in the event you just start blabbing "you did it" before they can get you to invoke your rights) will keep talking to you and tell you not to comment, just to listen, even while your lawyer sits outside. They can say you're being processed, or there's a security issue, any number of reasons for short delays if they need it. They will then go on and on about "how they can maybe help you out if you talk now, but once your lawyer arrives all bets are off." These are just tricks to get you to recant/revoke your rights and to obtain your confession. You will usually see your lawyer shortly after arrival. Can they impede or delay access to me by someone who claims to be my counsel? Yes, if your lawyer doesn't have adequate ID or cannot verify he is licensed in that state, or in another state and with local counsel. The police do not have a duty to research your lawyer's credentials, and don't have to go online and look your attorney up in the bar directory to make it easier for him or her to get to you. However, if they know the attorney, and he or she forgot his bar card, they would probably lose the confession if you confessed while they make him go get it. Most lawyers carry their bar card in their wallet, so this is not a typical problem. 4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? You have a right to contact a lawyer. There is no explicit right to a phone call, although some form of contact is implied. Hence, you can usually be held 3 hours before they have to let you "contact" someone, and this is after processing. You can be held until your lawyer gets there or until your arraignment, whatever comes first. If your lawyer doesn't show up, you will be given another opportunity by the court to get your lawyer of choice there for arraignment. If you can't, and you don't want to go forward, a public defender will move to waive your right to a speedy trial and seek a continuance until you can get your counsel of choice there. If this happens, consider getting a new lawyer. What means must I be granted to find and contact the counsel of my choice? This actually differs depending on where you are and what you did. Again, you have a right to counsel but they can determine how you get this done. Sometimes there are local laws that say you get any number, or 3, or 1 completed phone call to reach your counsel of choice. If there is an overriding risk that you will call someone to communicate information that could put the investigation in jeopardy or would be adversely impact their evidentiary value in some way, even when these laws exist the police can refuse you direct contact with anyone and may implement a strict "they call" policy, where they will call the lawyer and tell them, or call your family to let them know, and they can call the lawyer. They cannot hold you for a protracted amount of time without giving you some way to get word to a lawyer; it must be reasonable. There is not a lot of law out there about what is not reasonable, because the police know, and for the most part accept, that once right to counsel has been invoked they are done. There is case law saying that 3 hours is reasonable. What is not reasonable? That is fact dependent.
There are no such laws that are specific to rape, but there are general laws about false statements. In every state there is some law against making a false statement to a government official, e.g. Washington RCW 9A.76.175 which says that one who "knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor". To shift context slightly, if you report to the police that Smith stole your lawn mower when in fact you gave it to him, that is a false statement. However, there would have to be clear proof that you lied in your report, and not that there was a misunderstanding. If Smith stole the mower but the evidence did not support a theft conviction, that does not mean that you can be prosecuted for making a false statement (whereas, if someone has a video of you telling Smith "Here's a mower, which I give to you because I like you", then you could almost be prosecuted for making a false statement, were it not for the fact that the video is illegal in Washington). Perjury is the other related crime: RCW 9A.72.020 "a materially false statement which he or she knows to be false under an oath required or authorized by law". [Addendum] About the video of the mower being given away... Washington is an all-party consent state, meaning that you can't just record people, you have to have their permission (everybody's permission). RCW 9.73.050 says that information obtained by illegal recording shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080 which is to say, "unless the person(s) who did not give permission to be recorded now give permission for the evidence to be admitted". Since "you" would be the one making a false statement, "you" would have an interest in suppressing the video, thus "you" could withhold permission for the video to be introduced.
Was the case Sealed? Or is it considered to be Private? Those are two different cases. I was not able to find any laws regarding sealing, or expunging records of Name Changes, but was able to find the Utah Law for Criminal Records. I can only assume they draw from one another. All that being said, assuming your whatever case is sealed, then Some records are sealed. In these kinds of cases, even information about the existence of the case is not publicly available. A person seeking access to a sealed record must petition the court for permission to unseal the records. Rule 4-202.03 states that, ....no one may access a sealed court record except by order of the court. A judge may review a sealed record when the circumstances warrant. From that I can assume that, The records are not public. The records will not show up in a routine check The records will be known only if a there is a court order. Comparing it with the Expungement Act, Continued Use of Sealed Records After sealing, BCI continues to index and maintain all expunged records of arrests and convictions, but the records will not be released to the public. BCI will not divulge any information contained in the expunged records to any person or agency without a court order, unless authorized by statute to do so. Upon request, the following organizations may receive information contained in expunged records: the Board of Pardons and Parole Peace Officer Standards and Training federal authorities, unless prohibited by federal law the Division of Occupational and Professional Licensing and the State Office of Education Both cases above require a court order to get that seal record information. However, from what I gather only expunged criminal records can be access upon request by the Division of Occupational Licences. Bottom line, it sounds like you are safe to mark is no previous name, but you may lose your license in the future if something goes south. I will recommend you to get a professional look into the word of the law and provide you with a written statement of the actual law. Another thing you can try is write to the court who sealed your case, present them the situation and explain what you have found so far, and ask for guidance.
This isn't about bullying at all, this is about Virginia being a "one-party" state. Virginia Law 19.2-62 outlines that: B.2 It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. However what is not said in the article is that the daughter didn't know that the recording device was in the backpack. This means that the mother did not get consent from either party being recorded (it isn't clear that a minor could give consent anyway), and is therefore in violation of 19.2-62. The (US) law has been quite clear on "two wrongs don't make a right", the mother was not getting satisfaction through other channels, but that does not mean she is right in violating the law in pursuit of justice. This is still very much in the early stages of this particular case, but I'm willing to bet that the mother will see very little if any punishment in this matter. As for why the DA doesn't prosecute the children (or their parents) for the bullying, this really depends on what kind of bullying is subject here. If the children are verbally bullying, this may not be a crime (yes, it is morally wrong, but may not be a crime). It isn't to say though that the children in this case haven't been reprimanded according to State law, at least the subject of the bullying has been moved to a different class as a result. Unless the bullying reaches a physical level, most State laws require the schools to deal with the bullying directly (through moving children to different classes, suspensions, expelling, etc), so the DA doesn't typically get involved until physical injury occurs.
The victim of domestic violence is referred to as the complaining witness. Domestic violence arrests will result in a criminal investigation. It is not up to the complaining witness to determine if charges are brought against the one who was arrested - this is up to the prosecutor. Here is a good article at Findlaw that discusses the process. If the complaining witness recants, the prosecutor may decide to drop the charges. The prosecutor may, though, decide to continue the charges and prosecute the case. The complaining witness in recanting may face charges as well - for example, for making a false police report. If the prosecutor presses the case and your husband is convicted then, yes, it will be on his record. Seeking the advice of a New York attorney who specializes in these matters is the best course of action. EDIT: Here is additional information regarding New York Criminal History Records: New York State law does specify that, unless the court orders otherwise, arrest records are sealed when criminal actions are terminated in favor of the accused - dismissed, found not guilty, etc. This is spelled out in Criminal Procedure Law 160.50. Arrest records are part of the public record until disposition of the case is completed. At New York State's Court web site, you can read about how to get criminal records of anyone - they are public record so anyone can make a request about anyone. There is a fee of $65. Records can be ordered online and the results can be emailed to you. Searches are processed by an exact match of name and date of birth. From their web site you will see that criminal cases transferred or removed to Family Court are not reported. Neither are records for people who had a single misdemeanor conviction over ten years ago or pending criminal cases categorized as Youthful Offender Eligible. Generally speaking, New York criminal cases are part of the public record and are available to anyone unless they meet certain criteria or have been sealed under New York State law. Note that sealing records doesn't mean the record goes away. It just means that the record is not available to the general public without a court order unsealing the record. Here is the link to on-line direct access to records requests: http://www.nycourts.gov/APPS/chrs/onlinedirectaccess.shtml