Safe Haven Therapy: An Overview, Part II

by Annette Burns on March 27, 2017

This is the second post about safe haven counseling, which applies to children’s counseling records in custody cases.   The first post is here.

A couple of  Arizona statutes are relevant to the safe haven issue.  ARS 13-3620 is Arizona’s duty to report statute, and Subsection G provides that release of a child’s records does not violate privilege in the case of investigation of child abuse or neglect proceedings. So where abuse or neglect is alleged and is the subject of police or agency investigations, no one can assert privilege to prevent the production of therapy records.

What is the statutory standard for safe haven protection for a child’s therapy records in Arizona?   State law provides that a person acting as a therapist may make a finding that  the patient (the child) could be harmed by revealing what the child has told the therapist.    Specifically, if the therapist states that revealing information to the “patient’s health care decision maker” (i.e., the parent) is “reasonably likely to cause substantial harm to the patient”, the information should not be revealed, even through court processes like testimony or Subpoenas.

This statute is ARS 12-2293B(3) and here’s the exact language:

  1. A health care provider may deny a request for access to or copies of medical records or payment records if a health professional determines that either: . . .
  2. Access by the patient’s health care decision maker is reasonably likely to cause substantial harm to the patient or another person. (Emphasis added)

One thing to note is that because the therapist must actively state that access is reasonably like to cause harm, it stands to reason that the therapy must have already started.  The therapist is hardly in a position to state that records will cause harm if the records don’t exist yet.  So, safe haven agreements that are signed by the parents before the child’s therapy starts, are inherently unreliable and arguably don’t meet the statutory standard.  To get around that issue, safe haven agreements should be carefully crafted to recognize that the therapist needs to make a finding, after therapy has started, as to whether or not access to records are likely to cause harm.  The therapist should then be careful to document that finding in the course of the therapy.

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