THERAPIST CONFIDENTIALITY, GLADYS R. QUESTIONNAIRES, AND POLICE VS. MEDICAL EXAMINERS - 029

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This week on the Writer's Detective Bureau, therapist confidentiality, Gladys R. Questionnaires and police versus medical examiners. I'm Adam Richardson, and this is the Writer's Detective Bureau.

This is episode number 29 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters, write professional quality crime related fiction. I want to thank Gold Shield Patron, Debra Dunbar from debradunbar.com and Coffee Club Patreon, Joan Raymond, Guy Alton, Natasha Bajema, Natalie Barelli, Joe Trent, Siobhan Pope, Leah Cutter, Ryan Kinmil, Richard Phillips, Robin Lyons, Gene Desrochers, Craig Kingsman, and Kate Wagner. Your support definitely keeps the lights on in the bureau. Please support all of these awesome authors by visiting their author websites and checking out their books. You can find links to their websites in the show notes by going to writersdetective.com/29 and if you have your own author business, consider joining Patreon. It's free for you and it allows your readers to support you financially through monthly micropayments. Give your fans a chance to show their support by creating your own Patreon account right now. To learn more, visit writersdetective.com/Patreon P. A. T. R. E. O. N.

This week's first question comes from Julia Derek and you can find her at juliaderek.com and the link for that will be in the show notes at writersdetective.com/29. Julia writes, "If a child is victimized and also the only witness to a big crime, how would the police approach this? This is the scenario in my current thriller, I have a therapist who's working with the child rehabbing the major PTSD the child has suffered while being part of a sex trafficking ring producing child pornos while also fishing for information about the sex ring for the cops to help their investigation. Will the therapist be allowed to share what she or he learns in the sessions with the child, with the child's parent? The child is 11. I'm thinking yes, but I could be wrong. Thanks, Julia". Thank you so much for your question, Julia.

The police will often use a trained forensic psychologists to conduct the interviews of children that have been victimized and these sessions however are video recorded with the specific intention of using that session as evidence. So this kind of interview would likely have been done shortly after learning of the victimization as part of the initial police investigation. But based on your question, Julia, it sounds like this part of the story would actually be after that initial report to the police in start of the investigation. So where the child is now receiving ongoing therapy as part of the healing process. So to answer your question about the legality of sharing the therapists or of the therapist's sharing what she learns with the parent, I turn to psychologist Dr. Vanessa Holtgrave for help with answering this. You might remember Dr. Holtgrave from episode 15 of this podcast and if you haven't listened to my interview with her, be sure to check that out. It's episode 15 in the back list.

So this is what Dr. Holtgrave had to say, and it's quite long, but it's really informative. "Child is victimized and also the only witness to a major crime. Does the crime involved the child or was the crime independent of the child's victimization? Was the perpetrator or perpetrators already apprehended or will this information aid in the apprehension of the perpetrators? In this case, the child is part of a sex trafficking ring and also part of the production of child pornography. Many factors are at play both legally and ethically. You have state law covering confidentiality, mandated reporting, and a duty to warn your federal law, which includes the Patriot Act and HIPAA and then an ethical obligation. American Psychological Association code of Conduct, all of that should be considered.

In California under state law, confidentiality can be violated or should not be expected if the person meets one of four criteria. Number one, if the client presents an imminent threat of harm to self or others. Number two, when there's an indication of abuse of a child, a dependent adult or an elderly adult. Number three, if the client becomes gravely disabled and unable to make rational decisions that would keep the client safe and number four, if information is required by a court subpoena or court order. Limitations of confidentiality include ability to release information pertaining to the identification or location of a missing person if a death is suspected to be the result of criminal misconduct and in the case of an emergency such as to look at victims or provide the description of the location of victims for emergency services". Now regarding HIPAA, which is the Health Insurance Portability and Accountability Act of 1996 and HIPAA is H.I.P.A.A. "HIPAA is not a factor in this scenario because HIPAA pertains to the release of information for billing and health reporting of patient medical information, which is used to simplify medical billing and other electronic transactions.

Psychotherapy notes have additional protections under federal law and most uses or disclosures of psychotherapy require written authorization for release. Psychotherapy notes under HIPAA must be kept separate from the rest of the patient's mental health records. The therapist may properly deny the patient access to the psychotherapy notes when the patient makes a written demand for a copy of his or her own records. Insurance companies are not ordinarily entitled to psychotherapy notes without the patient's written authorization and in litigation, psychotherapy notes are discoverable pursuant to a subpoena when mental health records are determined to be relevant and the psychotherapist patient privilege has been waived or otherwise not applicable". Dr. Holtgrave goes on to say, "Another aspect that should be considered in this case involves understanding the difference between confidentiality and privilege. Confidentiality is the patient's ethical right to have the information they share with a therapist kept from being divulged to third parties without express consent.

But who gives consent when a minor is involved? In short, confidentiality is the psychologist's ethical duty, while privacy is the patient's legal right. The law recognizes privileged communication as a private protected relationship. In order for conditions to be met to uphold privileged communication, the relationship must be between individuals in a legally protected relationship and must take place in a private setting where there is a reasonable expectation for confidentiality such as a psychologist's office and privileged status is lost if that communication is shared with a third party not involved in that protected relationship. Confidentiality is applied outside of the courtroom setting and the psychotherapist patient privilege is applied in a courtroom setting. But who is the holder of the privilege in this case? Here's where it gets tricky in this story. The patient is a minor. Minors generally cannot consent to treatment. Therefore, a parent or guardian consents to treatment on the minor's behalf. With the exception of certain states like California where minors can consent to their own mental health treatment if they're certain age or if they're emancipated.

Usually the patient is the holder of the privilege, but in this case the guardians or the parents are the holder of the privilege. So in California, confidentiality is maintained under state law in addition to being maintained under the code of ethics for practicing mental health professionals. So this would constitute a legal and an ethical violation. Because the psychotherapist is required by law to violate confidentiality, they are not displaying unprofessional conduct. Therapists have an ethical duty to respect the minors need for confidentiality, but finds themselves in ethical conflict when the parent or legal guardian desires information about the minors treatment and are legally able to obtain information about the treatment. Some minors who are aged 12 or older are entitled to the same level of confidentiality as an adult. In this scenario, the client is 11 years of age and not emancipated and would not be afforded this right. Because the parent is the consenting party, they are legally able to obtain information about the content of the child's treatment.

From a clinical perspective, rapport is essential when working with children and adolescents. A psychologist is required to explain the nature of the therapeutic relationship early on in the relationship. Usually during the first session, which also outlines limitations of confidentiality. When working with individuals who cannot provide informed consent such as a minor, the psychologist has an ethical duty to consider the client's preferences and best interests. The psychologists must make it clear to all parties, both the adolescent and the parents about what the relationship will be with each party and what limitations apply, including what information will be shared with whom and when. In this scenario, because the minor has been victimized, the psychologist has both a legal and ethical duty to disclose confidential information without the parent's consent or minors ascent in order to protect the client or others from harm. The psychologist would ideally attempt to empower the adolescent to be part of the conversation pertaining to information being shared with the parent and then also give the adolescent information beforehand, the information will be shared in order to respect the therapeutic relationship and rapport with that adolescent.

A court may also order psychotherapy notes to be released under a valid subpoena, so if being subpoenaed, the psychologist has a duty to first contact the patient or in this case the parent to determine if the psychotherapist patient privilege is being asserted or waived. This is required for state law, but this option is not available under the Patriot Act or a section 215 Order, which we'll get into in just a second. The California Penal Code also provides permissive reporting if the mental suffering of a child is expected or their emotional wellbeing is endangered. So making things even trickier because sex trafficking falls under Federal Law, it may be subject to section 215 of the Patriot Act of 2001. Section 215 contains an exception to the confidentiality that requires therapists to provide the FBI with records and documentation and also prohibits the therapist from disclosing this release of information to the patient or guardians.

In short, there is no black and white answer, but the therapist has a duty to report information pertaining to sex trafficking and any harm that occurred to the child, but the child should be aware of these limitations in confidentiality from the outset of treatment due to informed consent. What gets tricky is if the parent wants the child's identity to be protected in court and what records can be shared with the court and what the attorney and court's duty is to protect the identity of the minor involved when arrests are made and records are revealed, particularly with regard to keeping a minor's name and identifying information private and public records releases". Wow, that is a ton of great information. So Dr. Holtgrave if you're listening, thank you so much for helping out with Julia's question. So Julia, I would take a second look at Dr. Holtgrave's very detailed answer by going to the show notes at writersdetective.com/29 and reading through the transcript to let it all sink in.

Based on her answer, I think you could write a story either way you want choosing to either to disclose or not disclose to the parent and still have it be believable. Obviously you don't need to put all of this detail into your story, but whatever decision you have your therapist character make, you can use Dr. Holtgrave's guidance on the issue to help create a one or two line bit of dialogue explaining her decision to whomever, whether that's to the parents explaining why she can't say anything or perhaps to the detectives as to why she was obligated to tell the parents. I wouldn't over complicate the dialogue or story with it, but pay it just enough lip service to make your therapist's character seem completely knowledgeable on the topic and that her decision is final.

On a similar topic relating to the interviews of children by law enforcement, we have in California what is called the Gladys R. Questionnaire. This is a form that is used with children under the age of 14 that are accused of a crime and it's used to establish whether the child understands the wrongfulness of the criminal act. This questionnaire is usually completed after the child has been read his or her rights and the questions are designed to illustrate that the child knows the difference between the truth and a lie. Like if I said my shoes were purple with pink polka dots, would that be the truth or a lie? While this form is used for suspect interviews, this Gladys R. Questionnaire, these kinds of truth or a lie questions are often used by the police in victim interviews as well to help establish a foundation for the truthfulness of the interview.

The Gladys R. Questionnaire gets its name from a California case law decision from 1970. So it's Gladys and then R is the letter R with a period and in juvenile cases the first name and then only the first initial of the last name are used to name ... That's the naming convention for Juvenile Cases for privacy reasons. So the Gladys R. Questionnaire is the California name for this form, but I'm sure many states or even other countries will have a similar set of questions to establish the truthfulness for a juvenile. This truthfulness assessment is based around the understanding of how children's brains develop. Awareness of longterm consequences and using good judgment and situations have some strong roots in the frontal lobes of our brains, which is kind of our logic center I guess. So those don't develop that frontal lobe doesn't fully develop until we're in our twenties.

Prior to the full formation of our frontal lobes, are decisions tend to be more emotion based rather than logic based. This is why your teenagers do dumb things when you think that they should know better, but it's also part of the reasoning why the juvenile justice system is considered separate from the adult criminal justice system with the understanding that they don't have a full use of their longterm consequences faculties. So thank you so much for such a thought provoking question, Julia. Be sure to visit Julia's website at juliaderek.com.

In this week's next question relates to the roles of police versus the medical examiners office. This came from the Facebook page and the question was asked, who investigates what? The Police versus Medical Examiners office in Washington State. Scenario one, a homeless person known to be an addict is found collapsed on a downtown street. Paramedics can't revive him. Who gets called to the scene and what do they do? Scenario two, a student collapses and dies at a party. She used to dabble in drugs but not recently and her friends are surprised that she would have taken anything. Who gets called to the scene and what role does the medical examiners death investigator take versus the police officer? If it's foul play, who determines that?

In Washington, you'd have a medical examiner or a coroner determine cause and manner of death. More specifically, it would be a forensic pathologist, a doctor trained in medical legal exams of dissidents, but somebody from the office of the medical examiner or the office of the coroner, depending on what they have in that county would be the ones who issue the death certificates whenever a doctor is unable or unwilling to do that themselves. When I say doctor, I mean an attending physician. So to differentiate between the medical examiner and the police roles, think of the medical examiner or the coroner investigator, whatever it is, whoever it is from the medical examiner or a coroner's office as being solely focused on the body of the decedent were the police, on the other hand, are the ones investigating the entire incident. It may simply be an incident report written by the police officer on scene documenting that someone was down and they had paramedics transport him to the hospital, or it could be a full blown homicide investigation that results in the patrol officer calling out the detectives to investigate a murder.

Now, if it is a homicide investigation, the medical examiner or corners report would be included in the homicide investigation and the police detectives would also attend the autopsy of a homicide victim as part of the investigation and they're usually there to collect any evidence that's recovered during the autopsy, such as hair, bullets and that kind of thing. Then also to have the benefit of knowing exactly what the forensic pathologist finds during that autopsy without having to wait for the report to be written. Now, going back to that first example, I should also mention that if the person was obviously dead when the paramedics arrive using the homeless man that was found down, the medics will not transport the body usually. The police will stand by until either a coroner investigator or a medical examiner investigator arrives or, and this is especially true in smaller jurisdictions, they will stand by until the oncall mortuary arrives to transport the body.

So the mortuary, will transport the body to either the county morgue or to their own mortuary if there's a contract that's in place between the mortuary and the county for storing dissidents pending a death investigation. So you could kind of think of their facility is like a contract morgue. For the second scenario mentioned where a woman dies at a party, the toxicology screening taken during an autopsy would play a very important role in the investigation, especially in determining cause of death or manner of death. But it would be the police that would interview the party goers and document what the scene looked like. So in this case, where the party was located. So they would document what it looked like at their time of arrival and it would include photos. One thing that I was taught as a rookie working any dead body call, was to sketch the scene in my notebook and include that sketch as part of my report. The reason why sketching is important, even if you're not an artist, is because it forces you to slow down and survey the entire scene in greater detail.

So when you're working your pencil or your pen across that paper and you're trying to put in the picture of the bed and the desk and where the body was, that's where you're going to start to notice, like when you're sketching and you're looking at these fine details, that's when you're going to notice that there's a pill in the carpet or there is, whatever it is, the little tiny details in that room that you may have glanced over when you're dealing with all of the family and all of the other things that are going on when you get to a scene like that. But when you take the time to sketch a scene, you're going to pay much more attention to all the little details and simply snapping a photo and then moving on to the next thing on your checklist and whether the coroner or the medical examiner signs the death certificate versus whether an attending physician signs the death certificate, will depend on a few things. One important thing will be how long it's been since the doctor saw the patient.

In California, the doctor must've seen the patient within the last 20 days. I don't think Washington has a specific number of days from what I can tell doing my own quick little research for this question, but it has to be a pretty recent thing. You can't have not seen your patient for six months or a year and then sign their death certificate. So the next part of that is the ability to sign the death certificate depends on whether the doctor can attest that the death was the result of a known condition or disease. So if that doctor is treating the patient for terminal cancer, they can sign that death certificate, doesn't turn into a medical examiner or coroner investigation. Then the other thing is that, even if the doctor is willing to sign a death certificate because it is something that is a known situation, known condition, and they've been treating the patient, that death cannot be the result of an accident or some sort of act of violence.

So if the decedent died of a stabbing or died as a result of a car crash and the doctor's willing to say that the crash or the stabbing was the cause of death and they were under that doctor's care for those injuries, it's still going to be a corner or medical examiner case due to the cause of the injury in that subsequent death. So if one of those factors comes into play where the attending physician can and will sign the death certificate where they're able to, the coroner or [inaudible 00:22:56] still needs to be notified of the death even if it doesn't turn out to be their case. Lastly, as a writer, it's important to remember that people die every day at all hours of the day. So this makes dead body calls as routine for the police, as a traffic accident and just in literally just another day at the office for the coroner or medical examiner. So the homicides are the exception to the rule when it comes to a day at work. Well, hopefully if you live in a pretty decent area.

So that's about it for this week. Thanks for listening to this episode of the Writer's Detective Bureau Podcast, and I want to give a special shout out to those of you that have reviewed this podcast on iTunes. 27 five star reviews in the US iTunes store and a handful of five star reviews in the Canadian and UK iTunes stores. I see you guys, thank you so much for doing this and it's only been five stars. So I'm very fortunate to have listeners like you. So thank you, I see you. The international reach of the show is absolutely crazy to me and I just wanted to say that I appreciate you. So this podcast is created for writers like you. So send me your questions. Just go to writersdetective.com/podcast to get them in. Thanks again for listening, write well.