Informed Consent and Privacy Obligations for Couples Therapy
Couples therapy sessions require practice policies that reflect this unique provider-patient relationship.
If you’re a therapist working with individual clients, your ethical and legal obligations have been drilled into you during your schooling and practice. Rules for consent, competence, conflicts of interest, and confidentiality are the cornerstones of ethical practice. You may (and should) have a standard discussion with each client before beginning therapy. The discussion includes topics such as:
- informed consent – the risks, benefits, and alternatives to therapy;
- your communication style – e.g., after-hours availability, how the client can reach you, and telehealth; and
- therapist-client privilege – including who can access patient records and when you can break privilege.
However, for Licensed Marriage and Family Therapists (LMFTs, or the equivalent licensure in your state), these discussions — and your ethical obligations — can be more complex. In couples therapy, the “client” may be the couple as a unit, not the individuals. Moreover, one individual may reveal information to you that they have not yet shared with their partner. Thus, your couples sessions may require you to adopt an approach toward your privacy obligations that reflects this unique provider-patient relationship.
So how should you handle tricky situations relating to privacy and consent to share information? When obtaining informed consent for marriage or family therapy, the therapist should keep a list of considerations in mind.
Ensure that everyone knows who the “client” is. Is it each individual or the couple as a unit?
Some clients may come directly into couples therapy. Others may start individual therapy first, moving into couples therapy later. In the latter scenario, you should have already obtained the client’s informed consent in an individual capacity. However, you’ll also need to secure the client’s consent for couples therapy.
Transitioning a patient from individual to couples work can pose problems, as you have already learned private information about that individual. Consider whether you are the therapist best suited to treating your patient and their partner.
Per the American Counseling Association, whenever your role changes, you should “obtain informed consent from the client and explain the client’s right to refuse services related to the change.” You should also inform the client of any anticipated consequences of the change (such as financial, personal, or therapeutic consequences).
All involved parties must agree to couples counseling and its anticipated effects to participate. The couple must understand that the policies applicable to individual clients may have changed; instead of the individual being the sole priority, you may be treating the couple. Thus, depending on your policies, your duty of confidentiality may no longer exist between you and each individual, but between you and the couple as an entity.
Be upfront about your privacy policies.
Therapists can choose from several different confidentiality models for treating couples. For example, some therapists adopt a “no-secrets” policy, where individuals must share everything they confide to the therapist with their partner. In contrast, some therapists choose a “secrets” policy and may explicitly agree to hold secrets.
Others take a less black-and-white approach and use their professional judgment to determine on a case-by-case basis what is relevant and what course of action has the best chance of success.
Use your professional judgment to determine the kind of secrets policy to adopt. Your state licensing board, national professional association, or professional colleagues can be helpful resources for making such policy decisions.
Consider also whether you have any mandatory reporting obligations. For instance, if one of the parties has a mental health crisis or threatens to harm the other, different rules around confidentiality may apply. Your practice intake policies and notice of privacy practices should explain these rights and obligations.
Whatever your policy, ensure the couple understands the implications. If you have a no-secrets policy, the clients should consent to have all information shared between partners. If you take a case-by-case approach, make sure the couple understands that you may, but not necessarily will, share their secrets. It helps to offer examples to clarify how your policies work in common situations.
Obtain written consent from each client if you may be sharing information between the two.
Written consent is not only advisable for record-keeping, it’s also required. For example, the American Association of Marriage and Family Therapy’s Code of Ethics states that “In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.” Therefore, after you’ve had a conversation with the clients about your confidentiality policies, you should obtain a signed agreement to that policy from each client.
Be open to questions.
Often, informed consent forms ask the client to attest that they have had the opportunity to ask questions. Thus, you can only obtain a client’s valid informed consent if the client actually has had the opportunity to probe further. Couples counseling can involve significant gray areas, so clients likely do have questions. Being open to these queries fulfills your informed consent requirements, improves mutual understanding, and gives the therapy a better chance for success.
Consider when or if you have an obligation to withdraw.
What if your clients cannot agree to your secrets policy or are uncomfortable with the idea that you might share information from an individual session in a couples session? In some cases, you may need to help them find a new couples counselor.
If you choose to have a secrets-allowed policy, those secrets could create ethical conundrums or even conflicts of interest. In certain instances, secrets shared by one member of the couple may be significant and may push you to withdraw from treating the couple and the individuals.
Overall, couples counseling brings additional layers to your duties as a therapist. It requires a true understanding of privacy limitations to be successful. Clients’ informed consent to these limitations is crucial, and the consent conversation can help start a compliant and trustworthy therapeutic relationship.
An experienced healthcare lawyer can help you sort out your obligations and draft informed consent forms that meet legal requirements. If you practice in any of the states where we have licensed attorneys, schedule a free consultation. We have supported many therapy practices ranging from solo practitioners to mid-sized groups. Find out if we can address your needs, too.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.