Confidentiality in Separation and Divorce
Parenting while separated or divorced is an increasingly common reality for Australians. The reduction of social and legal barriers to divorce in recent times means more parents will experience a change in their marriage structure than they would have in the past. In fact, about 33 percent of Australian marriages will end in divorce (Australian Bureau of Statistics, 2007) and nearly half of those will involve children (Australian Bureau of Statistics, 2014).
Going through a divorce or separation can be a difficult transition for both parents and their children. Relationships, routines and responsibilities undergo significant changes during this time and many parents want to support their children through these changes by seeking professional help. However, before obtaining psychological services for a child, parents should understand how divorce or separation can affect the way in which psychologists practice.
This article will outline what parents and children can expect from clinicians in terms of consent and confidentiality, their legal and clinical obligations, and how they might navigate different separation situations.
Who consents to treatment and why is this important?
When providing a psychological service, psychologists need to obtain the consent of the service’s recipient. This means that a client fully understands what the service is, its benefits and risks, the consequences of not receiving it, what withdrawing consent means and the limits of client confidentiality (Australian Psychological Society, 2018). The latter refers to the expectation that information shared by the client during psychological treatment, and details of the treatment itself, remain private.
Obtaining consent is different when clients are under 18 years old. With young children, legal consent is sought from the parent seeking the psychological treatment on their behalf (the accompanying parent), although the clinician will also ensure that the child can safely express their desire to participate or withdraw from treatment. In older children, the capacity to give consent varies on a much more individual basis. At the Quirky Kid Clinic, parental consent to treatment is required regardless of the child’s maturity; other clinics may follow a different protocol.
Due to the variable nature of consent with children, the confidentiality of their treatment records is also impacted. Psychologists must balance the needs of the child, the responsibilities of the parent and the clinical relationship when issues of confidentiality arise. If the client is not mature enough to give consent, their records can be accessed by the parent or guardian who consents on their behalf. However, acceding to all parent requests for clinical information without regard for the child’s privacy may erode trust between the child and the psychologist. Given the importance of consent, it is critical that psychologists clearly explain to clients all issues of consent, confidentiality and disclosure before embarking on treatment.
The first session usually involves both the child and their parents, so that the clinician can go through everything with all the relevant parties present. To begin, Educational and Developmental Psychologist Dr Kimberley O’Brien likes to explain that therapy is “a confidential space where individuals can share their thoughts and feelings safely”.
Building an effective client-therapist relationship involves gaining and maintaining trust. To do this, Dr O’Brien encourages parents to support their child’s therapeutic journey by trusting her clinical judgement. She explains, “This means not every detail of what their child shares with me will be disclosed. But as a mandatory reporter, I must disclose to parents if a child is at risk of harm or at risk of harming others.”
To build a sense of privacy, Dr O’Brien also makes sure to check in with children regarding what they want their parents to know. “Children are usually happy to make a list of ideas or practical suggestions to share with their parents during our sessions,” she says. “These usually relate to a child wanting more independence, like a later bedtime or being allowed to walk to school. It’s important for me to check with the child that I’m allowed to share the information. Otherwise, I’ll lose their trust”.
What happens when my partner and I are in conflict?
Psychologists who are asked to provide treatment for a child will usually try to obtain the consent and involvement of both parents if the child is not mature enough to consent on their own. Under ordinary circumstances, however, consent from both is not legally required (Australian Psychological Society, 2018).
The ending of a marriage or serious relationship with children can change the requirements for parental consent to treatment, depending on the current relationship between the parents and whether the judiciary system is involved. The process of divorce or separation may include obtaining court orders to formalise agreements between parents regarding child custody, responsibility for major life decisions (health, education and religion) and financial arrangements.
If there are court orders specifying that only one parent is responsible for making health decisions, parental consent to treatment can only be obtained from that parent even if the other parent is the one to engage or contract the psychologist (Australian Psychological Society, 2018). However, the confidentiality of the child’s health records is only similarly restricted if the orders specify that only one parent has access. The orders may set out equal access or they may not specify access rights at all. If this is the case, conflict between parents over the child’s clinical information cannot be navigated by the psychologist alone and they will need to seek legal advice. Before an informed decision is made, the psychologist will need to proceed under the assumption that the non-accompanying parent can access the records if requested.
If the responsibility for health decisions has been specified as equal or if there are no court orders regarding this responsibility, the psychologist must discuss the potential involvement of the non-accompanying parent before treatment can begin. This is because the law recognises that, unless specified otherwise, both parents have equal decision-making responsibility with regards to the child (Australian Psychological Society, 2018). As a result, the consent of one parent does not prevent the other parent from seeking information about the treatment or objecting to the treatment entirely. If the former occurs, the psychologist is obliged to provide the relevant information. If the latter occurs, the psychologist may have to cease treatment until the parents reach an agreement or until the Court issues orders on the matter.
To ensure that consent is obtained responsibly and ethically, a psychologist who is asked to provide services will need to have a complete understanding of the parental relationship before they can begin. This means they will need to know about any court orders that are in place or are being decided upon, what terms the parents are currently on and what issues have caused (or are likely to cause) disagreement between the parents.
When gathering background information in an initial session, Dr O’Brien focuses on who lives in the household, how the parents are communicating and what their access arrangements are, and if there are any issues in the family dynamics between siblings or parents and children.
“Talking with the parents provides me with the bones or framework of the family structure,” says Dr O’Brien. “It is an opportunity to explore any emotional issues potentially impacting the child.” Following the parent-only appointment, Dr O’Brien likes to gain the child’s perspective in a one-to-one play-based session with the child using craft materials to explore family relations and feelings.
While ideally both parents will attend feedback sessions, Dr O’Brien acknowledges that it is more common for parents to attend separately to discuss their child’s progress and future goals. “The benefit of separate sessions is that I can maintain a sense of trust and rapport without undermining the confidentiality of each parent or my relationship with the young person.”
Parents may be worried about how their child’s therapy will affect their post-separation relationship. As the goal is to support the child, only relevant information is shared in feedback sessions. “If the young person tells me that they really like it when Dad reads them bedtime stories but he doesn’t do it for very long, or that they want to visit their favourite park with him more often, I’ll only be telling Dad about this,” explains Dr O’Brien.
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Subject: Two siblings, aged 7 and 10
Referring parent: Mother
Marital situation: Parents are divorcing. Mother explains that communication with the children’s father is inconsistent and that he has not approved of past attempts at psychological intervention. She expects that he will undermine the proceedings, but wants the children to start treatment.
Psychologist decision: The clinician obtains consent from the mother only, but brings up the possibility of the children’s father asking for clinical information via subpoena or demanding treatment cease in the future. They explain that it is not the clinic’s responsibility to inform the children’s father that they are starting treatment. They also advise the mother that if the children bring up their father in sessions, they will let her know.
Problem: After two child-only sessions, the clinic is contacted by the father’s solicitor insisting that work with the children ceases.
Solution: The clinician stops treatment and cancels all upcoming appointments with the children, but continues to see the mother for parent-only sessions. After the court case is resolved, the clinician resumes psychological treatment with the children in fortnightly appointments as stipulated by the court. A monthly Summary Report is provided separately to the parents over the course of 12 months.
What if my relationship ends during treatment?
Sometimes the relationship between parents breaks down while the psychologist is seeing the child for unrelated reasons. This means that the circumstances under which parental consent was obtained originally have now changed and confidentiality of the child’s clinical records is likewise affected. If the child is not mature enough to consent to treatment on their own, the psychologist must revisit the terms of consent with all involved parties (if possible) and explain how separation or divorce could affect the continuation of treatment (see above).
A psychologist may be asked by a parent to provide clinical information as part of the legal proceedings related to the separation. The typical course of action when clinical information is required in court proceedings is for a court-appointed psychologist to assess the child’s relationship with each parent and report on the findings. Thus, the clinician will need to let the requesting parent know that providing the information may be perceived as a form of bias by the court, as only one parent has requested it. The psychologist is not obligated to notify the other parent about the request, but prior to court proceedings a copy of any clinical information disclosed will be provided to their lawyer.
If the information a parent has asked for is not provided, they may request a subpoena from the court. This is a legal document compelling the psychologist to produce the relevant documents, give evidence in person, or both. The court will then reach a decision about whether the documents should be disclosed to the parties involved or if the evidence to be produced is relevant and admissible. A subpoena does not mean the requested information is immediately turned over to the party making the request. Under Australian law, the duty to comply with a subpoena is privileged over the right of the client to confidentiality (Harman, 2020). This means that regardless of whether the child or their parents have ownership over their clinical records, the psychologist will need to provide the court with the information requested.
However, a psychologist can ask the court to protect certain documents or pieces of information from being documented in court proceedings and provided to the parties involved (Australian Psychological Society, 2016). They may do this if they believe that releasing the requested information will have negative consequences for the child, such as placing them at risk of harm. Asking for information to be protected does not guarantee that it will be, though, and psychologists typically arrange a consultation with the Independent Children’s Lawyer (ICL) to discuss sensitive information which may only be shared with the Magistrate.
Apart from affecting consent and confidentiality, the end of a marriage can also impact the child’s therapeutic experience. Psychologists are not required to continue treatment if there is no clinical benefit for the child and parental conflict can produce a home environment that prevents adequate support. Many psychologists find that it is best to cease treatment until relations between parents are less tense.
The process of bringing a relationship to an end and the changes that accompany this process can feel overwhelming for parents. At Quirky Kid, we have summarised the most important points for separated (or separating) parents when considering or continuing psychological intervention for their child.
- Therapy works best when there is clear communication between parents. Many potential issues are avoided if parents are able to openly discuss things like financial arrangements for different therapy situations (e.g. parent-only, child-only,, parent and child) and or attendance at feedback sessions with the psychologist.
- If consistent communication is unfeasible, parents should still accept the possibility that they may both need to be involved in the process at some level. This may be better via video calls rather than with parents being in the same room.
- Having both parents engaged with the child’s school life helps clinicians when they need to bring up educational issues or propose special arrangements, such as learning support.
- Finally, being open and ready to support your child is extremely important. According to Dr O’Brien, “Psychological intervention is about strengthening positives and creating a future that’s optimal for both the parents and their child. It’s not about blaming or changing parenting styles, but appreciating differences and helping the child adapt to new circumstances.”
The Quirky Kid clinic provides psychological services to children from a wide range of backgrounds and family types. Our clinicians are experienced at guiding parents and children through the process of separation or divorce. Contact us to find out more about our services and how we can help.
View article references
- Australian Bureau of Statistics. (2007). Australian Social Trends, 2007. Australian Bureau of Statistics. https://www.abs.gov.au/ausstats/abs@.nsf/0/26D94B4C9A4769E6CA25732C00207644?opendocument#DIVORCE
- Australian Bureau of Statistics. (2014). Marriages and Divorces, Australia, 2014. Australian Bureau of Statistics. https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/3310.0Main+Features12014?OpenDocument=
- Australian Psychological Society. (2016). Managing Legal Requests for Client Files, Subpoenas, and Third Party Requests for Psychological Reports. Australian Psychological Society Limited.
- Australian Psychological Society. (2018). Child Wellbeing After Parental Separation.
- Australian Psychological Society. (2018). Ethical Guidelines for Working with Young People.
- Harman, J. J. (2020). The Protection of Confidentiality in Australian Family Law. Family Court Review, 58(1), 126-141. Wiley Online LIbrary. https://doi.org/10.1111/fcre.12459