INSIGHTS

When providing counselling services to a couple, record keeping and disclosure procedures may become complex.  To the extent that joint counselling records include information about more than one client, it may be challenging to disclose information regarding one client without thereby breaching confidentiality in respect of the other client(s).

Psychologists have a professional and ethical responsibility to maintain records.  Rule 34(1) of the Professional Board for Psychology’s Rules of Conduct Pertaining Specifically to the Profession of Psychology (Government Gazette, No. 29079, 4 August 2006) (the Rules of Conduct) provides that a psychologist shall create, maintain, store, disseminate and retain records and data relating to his or her scientific and professional work.  This includes the duty to keep a proper record of services provided to a couple. Psychologists should carefully consider record keeping procedures when providing couple therapy, in order to respect their clients’ confidentiality.

Insofar as the joint counselling record is concerned, difficulty may arise when a psychologist receives a request from one of the clients to access the couple’s counselling notes.  Typically, a request of this nature will be made once the clients have decided to end the relationship and one member of the former couple requests that the counselling notes be transferred to his or her new treating psychologist.  A request for access to a couple’s joint counselling notes may also be precipitated by a decision to divorce, in which case the record might be required for purposes of pending or future litigation between the former couple.    

Rule 28(1) of the Rules of Conduct provides that, when more than one client is provided with a psychological service during a joint session (for example, during couple therapy), a psychologist shall, at the beginning of the professional relationship, clarify to all parties the manner in which confidentiality will be handled.  Although the Rules do not specifically require this, the wording of Rule 28(1) makes it advisable to counsel clients regarding the nature and extent of record keeping procedures, the fact that a joint therapy record will be kept and the status (confidentiality) of this joint counselling record.  Ideally, psychologists should have a clearly articulated policy on how the joint counselling record will be dealt with and signed agreement to that policy should be obtained from each client.  

The Rules of Conduct define “client” as the user of psychological services, irrespective of whether the recipient of such services is an individual, a family, a group, an organization or a community. Rule 58(1) provides that it is important that psychologists clarify, at the outset of therapy, who is viewed as a client and the relationship the psychologist will have with each such person.  In the case of couple therapy, there are at least two individual clients receiving therapy at the same time.  These clients individually retain confidentiality, which they do not waive or abandon when agreeing to couple therapy.  Members of the couple are thus entitled to have their confidentiality protected and neither member is entitled to access the joint counselling record, unless authorization has been granted by the other.  As such, in the absence of written consent from both parties, joint counselling records may generally only be released in terms of a court order. 

The ethical position and professional requirements outlined above accord broadly with the provisions of the Promotion of Access to Information Act (Act No. 2 of 2000).   In this regard, section 65 of the Act provides that a request for access to a record must be refused if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.  It is submitted that the disclosure of couple’s counselling notes to one member of a couple, without obtaining consent from the other, may constitute such a breach which is owed to the non-consenting member in terms of the psychologist-client agreement.  

Whilst the Promotion of Access to Information Act does not apply to records requested for criminal or civil proceedings after commencement of such proceedings, the Act will apply to any request for access to a couple’s counselling notes made prior to the commencement of litigation, for example, prior to service of a summons for divorce.  In such circumstances, it is recommended that psychologists deal with a request for access to a couple’s counselling notes in terms of the third-party notification procedure outlined in section 71 of the Act. 

Section 71(1) of the Act provides that when considering a request for access to a record that might fall within the ambit of section 65 of the Act (i.e. where disclosure would constitute an action for breach of a duty of confidence owed to third party in term of an agreement), the recipient of the request must take all reasonable steps to inform the third party thereof.  To the extent that the disclosure of a couple’s counselling notes to one member, without the consent of the other member, might constitute an action for breach of a duty of confidence owed to the non-consenting partner, the psychologist should notify the non-consenting partner (the so-called “third party”) of the request.  

The Act provides that such a notification must be sent as soon as reasonably possible, but in any event within 21 days after the request for access to the record was received, and by the fastest means reasonably possible.  Section 71(3) provides that the notification must also contain the following information:

1. The fact that the psychologist is considering a request for access to a record that might be a record contemplated in section 65;

2. A description of the record (for example, the contemporaneous handwritten notes made during the course of the joint couple therapy sessions for a particular period);

3. The name of the person requesting access to the record;

4. A description of the provisions of section 65; and

5. Confirmation that the third party may, within 21 days after he or she is informed of the request, make written or oral representations to the psychologist as to why the request for access should be refused; or give written consent for the disclosure of the record to the requester.

In terms of section 73 of the Act, the psychologist must, as soon as reasonably possible, but in any event within 30 days after the third party has been informed of the request, decide, after giving due regard to any representations made by the third party, whether or not to grant the request for access to the record.  Both the third party and the requester should then be informed of the decision.

For the reasons outlined above, it is recommended that a request for access to a couple’s counselling notes should be refused, unless the other member of the couple consents to the disclosure in writing.  When a request for access to a record is refused, the psychologist should provide the requester with adequate reasons for the refusal, namely that the disclosure of the counselling notes without consent from the other partner, will constitute a breach of confidentiality.  The requester should also be informed that he or she has a right to lodge a complaint with the Information Regulator within 180 days of the decision, or to apply to court for relief after he or she has exhausted the complaints procedure outlined in the Act.  

When providing services to more than one person simultaneously, psychologists may face a number of ethical challenges unique to this mode of therapy.  Most of these challenges can be avoided, or at least assuaged, by making sure, prior to commencing treatment, that all parties have a clear understanding of who the client is, as well as the psychologist’s policy on access to the joint therapy record.  When in doubt, psychologists are encouraged to contact their professional indemnity provider, a senior colleague or their Professional Board for advice before responding to a request for access to joint therapy records.