Return Therapy Records and Clarify and Strengthen Privacy and Confidentiality Guarantees for Clients of all Mental Health Clinics at the University [SUSPENSION OF RULES, 03/11/15]

Number: 
US14/15-60
Date of Notice: 
Wed, 03/11/2015
Legislation, Resolution, or Policy Adoption: 
Resolution
Current Status: 
Approved on 03/11/15
Motion: 

Section I

1.1  Whereas, according to the Office of General Counsel, therapy records were moved from the University Counseling and Testing Center in early December to OGC, where the envelope was opened and the records were scanned electronically before being filed; and

1.2  Whereas there is growing national press attention and professional alarm regarding this matter and considerable anxiety and confusion among University students and staff about University policies; and

1.3  Whereas therapy records in a university clinic must be guaranteed the same protections as those in a non-university clinic; and

1.4  Whereas the University has a duty to clarify to our students that we are opposed to actual or apparent violation of rape survivors’ civil rights and privacy rights; and

1.5  Whereas many believe there is a discrepancy between the promised level of confidentiality on the website of the University Counseling and Testing Center (UCTC) (see attached screenshot of privacy policy) and the reality of recent events; and

1.6  Whereas the General Counsel has now said he should have received a written waiver of access (“If I could go back in retrospect, I would have sent (the student’s attorneys) a letter or email back, asking, ‘Is this really what you mean?’” -- reported in the Register-Guard, March 10, 2015); and

1.7  Whereas directors of mental health clinics at the University should not interfere with the ethical integrity or licensing requirements of mental health providers on this campus who are obligated to protect client confidentiality within professionally established limits (e.g. the American Psychology Association’s ethics code and the ethics code for other therapists, both enshrined in Oregon law); and

1.8  Whereas clinicians have the right to check with independent liability attorneys or other attorneys if they need legal clarification of their obligations and responsibilities; and

1.9  Whereas mental health services should inform clinicians in writing when there is any request from outside or inside the University for records regarding a client they are or have been treating; and

1.10  Whereas clinicians should have the exclusive responsibility for deciding on any release of information, just as they do in private practice; and

1.11  Whereas release of information by a clinician should be based only on client consent, other clearly articulated exceptions to confidentiality such as danger to life, or a court order; and

1.12  Whereas the University has the authority to voluntarily follow HIPAA in addition to FERPA guidelines for privacy of therapy records (and, similarly, to decide not to allow FERPA “treatment records” to become less-protected “education records”); and

1.13  Whereas significant policy revisions are needed to ensure that all university therapy clinics or centers will fully and fairly disclose to students any exceptions to the confidentiality of their therapy records, in language that is honest and clear to a reasonable student seeking services;

Section II

2.1  BE IT HEREBY RESOLVED that The Senate praises the General Counsel for recognizing that, in the absence of a court order, therapy files should only be accessed with an explicit, written waiver from a student patient or her lawyer; and

2.2  BE IT FURTHER RESOLVED that the Senate urges the President to direct the University of Oregon’s Office of General Counsel to return the hard copy therapy records to the treating therapist at the counseling center, without making any copies, if legally possible; and

2.3  BE IT FURTHER RESOLVED that if legally possible the Office of General Counsel should destroy its electronic copies and, if they were transmitted anywhere, ensure those are destroyed as well, while at the same time directing the treating therapist herself to maintain all records as a “litigation hold”; and

2.4  BE IT FURTHER RESOLVED that if the steps in paragraphs 2.2 and 2.3 are not legally possible, the Senate requests that the General Counsel explain that in a written legal memorandum with appropriate legal citations; and

2.5  BE IT FURTHER RESOLVED that the Senate should create an ad hoc working group or subcommittee of the Senate Committee on Sexual and Gender-Based Violence with Administration participation; and

2.6  BE IT FURTHER RESOLVED that such working group or subcommittee should craft guarantees and policy changes discussed in the “whereas” clauses above; and

BE IT FURTHER RESOLVED that such working group or subcommittee should report on a monthly basis (until after such time as the work is complete) to the Senate the results and progress of their efforts to ensure that counseling at University of Oregon clinics and centers will be confidential and safe for students and clients under guarantees and policy changes discussed in paragraph 2.6.

Financial Impact: 
Cost Positive. This motion will potentially save a significant amount of money by avoiding serious legal problems.
Sponsor: 

Jennifer Freyd (Psychology), Senator

Carol Stabile (Journalism & Communication), Professor and Chair of the Committee on Sexual and Gender-Based Violence; John Bonine (Law), Professor

Regina Psaki (Romance Languages), Senator

Michael Dreiling (Sociology), Senator