How are safe haven counseling orders misused in family court cases?
This is Part Four of a series I started in 2017 (please don’t judge me). I posted the first three posts about safe haven counseling, found here, here, and here, but didn’t complete the 4th post, which I said would cover “How are safe haven counseling orders misused in family court cases?”
Arguably, I could say I’ve spent the last four years doing more research on that issue.
In Part III of the series on safe haven orders, I mentioned several provisions that I think should be in safe haven orders. In my opinion, if any of the following things are included in a safe haven order, it’s a mistake and a misuse of the safe haven status: To be clear, these things should NOT be in a safe haven order:
*That the therapist will not talk to the parents.
*That the therapist may speak with a parent only if the other parent is present and may never speak with a parent separately.
*That the therapist will not speak with a court-appointed third party about the course of therapy.
*That the therapist will not provide a treatment summary.
*That the therapist may not be subpoenaed to trial or deposition to speak about therapist’s communications with the parents or third parties. The therapist’s communications with the parents or third parties are NOT protected by the child’s privilege.
Unfortunately, it’s not uncommon for a possibly well-meaning therapist to use safe haven orders as a shield against all of these situations. If that happens, the parents and the court should be prepared to challenge the therapist and narrowly define the safe haven orders so they cover only what is necessary to protect the child/ patient from substantial harm.
To be very clear: Safe haven orders are NOT for the protection of the therapist or to shield the therapist from liability, legitimate questions about the course of therapy, or court proceedings. Safe haven orders should protect only detailed records and detailed information gained directly from the child’s therapy. Safe haven orders are for the protection of the child, not the professional.
- If the therapist refuses to speak with the parents at all, citing safe haven orders, the orders are being misused. Hopefully if this is occurring, the parents can reach an agreement that either the therapy orders, or the therapist himself, must be changed.
- If a therapist refuses to speak with a parent individually and will talk with the parents only when together, this again is an unwarranted extension of safe haven orders. A therapist is permitted to speak with a parent individually for routine matters, including housekeeping matters that are often discussed either at the beginning or the end of the child’s therapy sessions. While therapists must be careful not to communicate solely with one parent to the exclusion of the other parent, and should try to treat the parents equivalently, the use of safe haven orders to avoid speaking with the parents separately is a misuse of those orders. When a therapist has substantive information for the parents, such as how a particular situation with the child could be handled, or how to present a united front on a particular issue, that information should be communicated to the parents at the same time and in the same way (i.e. either a joint meeting or an email).
- If a therapist refuses to communicate with the court, other professionals (attorneys for the parties, or court-appointed professionals) in any way and about anything, that is a misuse of the orders. Therapists may, even with a safe haven order in effect, be subpoenaed to trial or deposition to speak about the therapist’s communications with persons other than the child. A therapist’s communications with one or both parents, and with third parties, may be relevant to the court proceedings. The therapist’s communications with the parents or third parties are not protected by the child’s privilege. Even if the therapist’s communications with a parent technically becomes “part” of the child’s therapeutic record, it will be more difficult for the therapist to accurately claim that “access [to this information] is reasonably likely to cause substantial harm to the patient or another person” because this information (supplied by a third party) is already known to at least one party or a third party.
- A therapist cannot refuse to provide a treatment summary by citing safe haven protection. A treatment summary and designation of treatment goals are an integral part of the child’s treatment and sharing this information with the parents should not cause substantial harm to the child. In the unusual situation where a therapist feels merely revealing the treatment summary or treatment goals could be harmful to the child, the therapist should be prepared to substantiate that finding to the court with specific information.
Unfortunately, the misuse of safe haven orders and the refusal of some therapists to provide any information at all about the course of therapy is likely to harm the use of safe haven protection even in situations where that protection should apply. When a parent or the court is deprived of relevant information in the name of a safe haven order, and where the information can hardly be said to be directly related to the child’s disclosures in the therapeutic relationship, the order is subject to nullification.