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Informed Consent & the Legal System
Make sure your patient knows the risks before disclosing therapy records to the court

This course is not legal advice. Consult with an attorney & be sure you comply with state and federal laws.

2 CE Credits/Hours - Online Course - $19.00

Developed by Bruce Borkosky, Psy.D.

This course includes materials consisting of:

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You've just received a subpoena, or your patient has asked you to disclose records to the legal system – should you release them? What if you think the disclosure is not in the best interest of your patient? Does your patient know that this could destroy the therapeutic relationship? Is your patient aware of the potential risks of disclosing this information? Your patient doesn't even know what's in the records – what if it harms their case?

In this course, you will learn about the reasons for and history of informed consent. You will also learn about the reasons that true informed consent is so hard to obtain. You will learn about the risks and benefits, to the patient, of disclosing their PHI, and of refusing to disclose (asserting privilege). We also cover several features common to the situation, independent of which choice the patient makes. Finally, the course identifies a number of recommendations for your practice – before a request for disclosure is made, when disclosure is anticipated, when the request is received, how to fulfill the disclosure request, and if the court demands that you testify. The reader of this course will receive a sample form that they can modify for their specific circumstances, to obtain informed consent for disclosure to the legal system. This sample form includes the potential benefits and risks of disclosing and refusing to disclose, alternatives, notification of the patient's freely made choice, and several important warnings that the patient should be made aware of.

This is an intermediate level course consisting of a two-part article, a sample informed consent form, a list of definitions and references for further study.

Educational Objectives

This course will teach psychotherapists to:

1.    Identify 9 potential risks of disclosing records to the legal system.

2.    Identify 3 barriers to truly informed consent.

Course Syllabus


Legal and ethical obligations to obtain informed consent

  • Privacy – the foundation of psychotherapy and informed consent
  • Informed Consent – the legal requirement
  • Informed Consent – important in forensic contexts

Barriers to obtaining fully informed consent

  • Psychotherapist barriers to informed consent
  • Statutory barriers to informed consent
  • Patient barriers to informed consent

Disclosures to the legal system can be harmful to the patient

  • Harm from improper requests for PHI
  • Harm from incorrect application of disclosure laws
  • Harm from disclosures to the legal system
    • Harm related to patient's attorney
    • Harm related to expert witnesses
    • Harm related to opposing attorneys
    • The court is not protective of patients

Disclosures to the legal system warrant informed consent

Risks and benefits when disclosing PHI to the legal system

  • Risks and benefits of disclosure
  • Risks and benefits of refusing to disclose
  • Common issues

Further Reading

Recommendations for Practice

  • Before beginning therapy
  • Beginning therapy
  • When disclosure is being considered
  • When the request for disclosure arrives
  • During the process of disclosing information to the legal system defined
  • When offering testimony in court
  • Summary and Conclusion

Form - Informed Consent to Disclose Records to the Legal System



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