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  1. #1
    mandik is offline Member
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    Counselor won't Release Medical Records

    What is the name of your state? WI

    My husbands attorney requested his kids psycologist's records. They said they will not release them because it would not be in the best interest of the children.

    Two years ago - same doctor, would not release records for three months. When husband read them, he drove 3 hours to talk to the doctor and informed him that his ex was making false allegations. (She told the doctor that there was past physical abuse, etc)

    When dad spoke to counselor recently he said kids were having trouble adjusting after summer with dad.

    We are trying to get custody and the GAL asked that the kids see a coulselor. My stepdaughter wants to live with us and there is major alienation going on. The kids recognize the alienation and talk openly with us (and I am assuming the counselor) about how much it bothers them that their mom and stepdad talk bad about their dad all of the time.

    Does anyone have any insight of why they are doing this? We are waiting for our attorney to call.

    Dad has joint custody. 25% Placement.
  2. #2
    lealea1005 is offline Senior Member
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    Pschological records are released at the descretion of the Psychiatrist/Psychologist/Counselor. If they feel, and can document, that releasing the records would be harmful or injurious to thehealth of the patient or recipient, they can withhold the records.
  3. #3
    BL
    BL is offline Senior Member
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    Also , the court can order them produced .

    Usually what happens when the court orders them , is the counselor will submit a written summary to the court of findings and recommendations , without sending the entire records .
  4. #4
    mandik is offline Member
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    Do they need to explain why?

    Thanks!
  5. #5
    lealea1005 is offline Senior Member
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    Quote Originally Posted by mandik View Post
    Do they need to explain why?

    Thanks!

    They'll, most likely, simply cite the state's health article code. They're not required to state anything more.
  6. #6
    proud_parent is offline Senior Member
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    Quote Originally Posted by lealea1005 View Post
    Pschological records are released at the descretion of the Psychiatrist/Psychologist/Counselor. If they feel, and can document, that releasing the records would be harmful or injurious to thehealth of the patient or recipient, they can withhold the records.
    I have to disagree, at least in part. I wholeheartedly agree that mental health professionals have an ethical duty to exercise discretion in determining whether to disclose treatment details to the parent(s) of a minor patient. Neither do I dispute that a therapist may refuse to disclose requested information if treatment would be compromised or the child might otherwise be harmed by disclosure.

    But the bottom line, based on what OP has posted, is that the father is entitled under Wisconsin law to the requested records unless there is a court order specifically barring his access. He does not need to seek a court order for their production, although that would be a course he might wish to pursue if this particular provider does not voluntary comply.

    WISCONSIN STATUTE 767.24 Custody and physical placement.

    (7) ACCESS TO RECORDS. (a) Except under par. (b) or unless otherwise ordered by the court, access to a child's medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child. (b) A parent who has been denied periods of physical placement with a child under this section is subject to s. 118.125 (2) (m) with respect to that child's school records, s. 51.30 (5) (bm) with respect to the child's court or treatment records, s. 55.07 with respect to the child's records relating to protective services and s. 146.835 with respect to the child's patient health care records.

    See also Chapter 146, sections 81 through 83. The parents (except as noted above) would be legally entitled to all contents of their children's medical records not excluded by statute, not merely a summary of findings and recommendations.


    OP, as far as insight as to why some therapists elect not to disclose, most likely zealousness to protect the confidentiality of the therapeutic relationship. Also desire to cover one's own backside against professional sanctions for failure to safeguard protected health information. Also desire not to get pulled into a custody battle if one can possibly avoid it.

    Furthermore, in my opinion, many mental health practitioners who treat minors are undereducated about applicable state laws and their interaction with HIPAA, specifically the Privacy Rule. That is, until a parent comes along who demands information about his or her child and then refuses to be put off when the practitioner demurs.
    Last edited by proud_parent; 04-30-2008 at 02:17 PM.
  7. #7
    mandik is offline Member
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    Thanks very much for citing the WI law proudparent.
  8. #8
    proud_parent is offline Senior Member
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    You are welcome.

    One other bit of advice, though: accept the legal reality that there is no "we" or "our" when it comes to custody modification. This is your husband's fight. The sooner you embrace that and remove such references from your vocabulary, the better for your husband's case, particularly if you are called to the witness stand.

    If your husband is inclined to assert his rights directly with the psychologist, rather than having his lawyer handle it, direct him to the form letters provided on deltabravo.net:


    [url]http://www.deltabravo.net/custody/recrequest1.php[/url]
    [url]http://www.deltabravo.net/custody/recrequest2.php[/url]
    [url]http://www.deltabravo.net/custody/recrequest3.php[/url]


    My husband was in a similar situation. He sent a cordial request for records along with a copy of the court order and got absolutely no response. Two and a half months and countless phone calls later, a receptionist responded that there were no such records on file. One very stern letter, sent certified mail / return receipt and citing that state's statutory penalties for failure to comply, and the clinic director phoned. It seems the records miraculously had surfaced. Even at that, he was reticent to release; he stated (incorrectly) that the mother's consent was needed as she had authorized treatment. My husband informed him that the mother had moved abroad and had no telephone. Hubby received complete records via overnight mail.
  9. #9
    lealea1005 is offline Senior Member
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    Wisconsin 51.30:

    Client access to psychotherapy notes. Even though the client has a right to access most health information, the client does not have a right to access psychotherapy notes. Therefore, the practitioner is not required to fulfill a client’s request for access to psychotherapy notes.

    Wisconsin defers to HIPAA regs regarding privacy of psychotherapy office notes.

    Hope this info is helpful. It's buried in there and took me a while to find it.
    Last edited by lealea1005; 05-01-2008 at 06:27 AM.
  10. #10
    proud_parent is offline Senior Member
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    Thanks for bringing that up, lealea.

    This is where things get sticky. Many psychotherapists do indeed keep a separate record of their notes apart from the medical record; in fact, the APA encourages segregation of especially sensitive disclosures by the patient to a separate file.

    [url]http://archive.psych.org/edu/other_res/lib_archives/archives/200201.pdf[/url]

    However, some therapists are not particularly diligent about recordkeeping, so what one cliinican may designate as "psychotherapy notes" subject to protection, another may include as part of the medical record. In the latter case, the parent might indeed be able to access the information.

    Even if the therapist maintains strict separation of records, there should still be a lot of information in the children's medical records, including diagnoses, treatment plans, prognoses, and progress notes.
  11. #11
    LdiJ is offline Senior Member
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    Quote Originally Posted by proud_parent View Post
    Thanks for bringing that up, lealea.

    This is where things get sticky. Many psychotherapists do indeed keep a separate record of their notes apart from the medical record; in fact, the APA encourages segregation of especially sensitive disclosures by the patient to a separate file.

    [url]http://archive.psych.org/edu/other_res/lib_archives/archives/200201.pdf[/url]

    However, some therapists are not particularly diligent about recordkeeping, so what one cliinican may designate as "psychotherapy notes" subject to protection, another may include as part of the medical record. In the latter case, the parent might indeed be able to access the information.

    Even if the therapist maintains strict separation of records, there should still be a lot of information in the children's medical records, including diagnoses, treatment plans, prognoses, and progress notes.
    I can certainly understand why a therapist would choose not to reveal information regarding what was said in the sessions with the child. It could easily defeat the entire purpose of the therapy.
  12. #12
    proud_parent is offline Senior Member
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    Quote Originally Posted by LdiJ View Post
    I can certainly understand why a therapist would choose not to reveal information regarding what was said in the sessions with the child. It could easily defeat the entire purpose of the therapy.
    Absolutely. However, my point -- in concurrence with the APA Ethics Office -- is this:

    First, while it is clinically and ethically indicated to make clear how the relationship is structured and how information will be shared, a psychologist cannot promise a minor that information will be kept from a parent who has legal custody. A parent with the legal right to treatment information may choose--however counterproductive in the psychologist's eyes--to exercise that right.
    [url]http://www.apa.org/monitor/mar02/confidentiality.html[/url]
  13. #13
    mandik is offline Member
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    Just an update here. My husband spoke to a forenzic psychatrist (sp?) who we may end up doing a custody eval. He specializes in this. He said...

    If you are the father, he has to release the records to you if you have custody. Him refusing puts his license in jeapordy.

    My husband has not been given ANY information about the kids therapy. He loves his children very much and would do anything for them. He very much wants to be involved and would be absolutly open to any advice their theripist would have. He is nervous because his ex can and does spin a web of lies to villonize him. She is very believable.

    Thanks again! I want to express how grateful I am to those who give such great advice on this forum. I have posted here a few times and received constructive critisism (sp?) that I did not like hearing. But in some cases, it was what I needed. I have been able to apply some of that to how I act and changes that need to be made.

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