A Legal Guide for Therapists Providing Couples Therapy

Couples therapy throws up many challenges for psychologists, not least managing the needs of two individuals who may have differing expectations and even opposing desired outcomes. 

Alongside the clinical challenges though, providing therapy to couples may require therapists to consider distinct legal and regulatory issues. Duties of confidentiality, data protection and professional responsibility must be managed in relation to more than one client, and become particularly sensitive where therapists also see partners individually.

In this article, I will address some key legal considerations for psychologists providing couples therapy in the UK, and provide guidance on managing confidentiality and data rights in a way that is both legally compliant and professionally responsible.

Defining The Client Relationship In Couples Therapy

Firstly, let’s clarify the dynamics of the professional relationship. When offering couples therapy, both persons are equal clients. This means - 

• Each partner has equal rights in relation to care, consent and confidentiality

• Information disclosed in joint sessions may constitute jointly-held personal data

• One partner does not have an automatic right to access records and personal data (including therapy notes) when this may include the other party’s personal data

  
  

We’ll circle back to that last point later on in this guide, as this is where things can get a little complex. Fundamentally though, a couple undergoing couples therapy are considered joint clients and therefore all contracts, including agreed terms, should reflect this. Each person has the same legal rights and your professional obligations to each of them should also be equal.

Consent In Couples Therapy

In the UK, consent is a legal requirement, as well as ethical professional practice. In couples therapy, consent must be obtained from each partner individually, and must be informed and formalised through written documentation.

Although consent must be given by each individual, a joint therapy agreement is advisable since, as stated above, both individuals have the same rights and presenting one contract can help to clarify this and provide assurance.

A Joint Therapy Agreement should define - 

• The therapeutic relationship, particularly in being treated as joint clients

• The purpose and scope of the therapy

• The structure of sessions (joint and individual)

• How confidentiality operates within and outside joint sessions

• How personal data and therapy records will be handled

• Rights to access records 

Each party must agree to the terms laid out before undergoing therapy and should receive a copy.

Confidentiality in Couples Therapy

In couples therapy, the duty of confidentiality is owed equally to both partners, which can lead to practical and legal complexity not present in individual work.

Confidentiality rights are governed both by professional standards and data protection legislation (UK GDPR and the UK Data Protection Act 2018). Confidentiality is also fundamental to professional reputation and standing as a therapist, as well as being crucial to trust in the therapeutic relationship. However, your duties to confidentiality can get confused when conducting couples therapy, particularly if you also opt to see either or both parties individually also.

Confidentiality in Joint Sessions

Information disclosed during joint sessions is not confidential between the partners, but it remains confidential in regards to third parties. Therapists should make this clear from the outset, to avoid misunderstandings.

Where information relates to both partners, it may constitute mixed personal data under UK GDPR, meaning that disclosure decisions must take into account the rights of both individuals.

Confidentiality and Individual Sessions

Where therapists also see partners individually as part of couples therapy, confidentiality requires particularly careful handling.

Generally, individual sessions would not form part of the couples therapy framework. Therefore, should be treated completely separately in terms of agreements, therapy notes and other personal data. This means they are completely confidential and nothing disclosed during individual sessions can be shared during joint sessions.

Some therapists may wish to operate a ‘no secrets’ policy. This is used to encourage honesty within the framework of couples therapy to support the success of the work. However, whilst a ‘no secrets’ policy can be used to inform clients about the therapeutic approach and manage expectations, it cannot legally compel disclosure of information from individual sessions that would breach the other partner's data protection or confidentiality rights. Ultimately, this clause is not able to override legal duties of confidentiality and data protection.

It’s important to note that you’re not obliged to agree to individual sessions if you suspect this may negatively impact joint sessions. You may also decline to hold separate one‑to‑one sessions unless both partners agree to the boundaries in advance.What’s essential is making clear in advance:

• Whether individual sessions form part of the couples therapy framework

• How information disclosed individually will be treated

• Whether a “no secrets” or limited-confidentiality approach applies

Most importantly, while therapists may opt to share information within the treatment framework, they must not override legal duties of confidentiality or data protection.

Although confidentiality may be lawfully breached in the case there is:

• Risk of serious harm to the client or others

• Concern over safeguarding of children or vulnerable adults

• A legal obligation to disclose, such as a court order

  
  

When Couples Therapy Is Terminated

Should one partner wish to terminate joint therapy sessions then, although you may encourage them to continue if you feel it is in their interest, ultimately one partner’s decision to terminate therapy will usually bring the couple's work to an end. However, this doesn’t mean you cannot see either party individually. What’s essential to note though is that individual sessions would constitute a new and separate therapeutic arrangement, requiring fresh contracting and consent.

In this situation, a therapist should consider whether they can conduct individual therapy to either partner without bias or insights from previous joint sessions influencing future sessions. In some cases, seeing one party separately can stoke further issues between the couple or even accusations of conflict of interest. Therapists in this predicament might prefer to refer the client to a new therapist where they can begin individual therapy with a clean slate.

Either way, regardless of how the joint sessions come to a close, each party's data rights remain the same and personal information should never transfer from this agreement to another.

Best Practice When Therapy Ends

When couples therapy ends following withdrawal by one partner, therapists should:

• Clearly document the reason for termination and the stage at which therapy ended

• Avoid recording speculative or emotionally charged interpretations

• Clarify in writing whether any further individual sessions will be offered

• Retain records in line with professional retention guidance

• Be prepared for potential data access requests following relationship breakdown

  
  

Record Requests In/After Couples Therapy

Under UK GDPR and UK Data Protection, individuals have the right to request access to their personal data, held by a therapist. However, in the case of therapy notes and other data obtained through couples therapy, this may well include the personal information of the other individual. In this case, one person’s legal right to their personal information may conflict with the other party’s legal right to confidentiality.

Where data is mixed, neither person has an automatic right to access it. In some cases of mixed data record requests, it is possible to redact a person’s information. However, the ICO clearly states that this may only occur if the person whose data is redacted is completely unidentifiable. Given the nature of couples therapy, this is highly unlikely to be possible. This being, redaction is usually not an option that would meet data protection regulations.

Therefore, the therapist may consider - 

• Whether the other partner’s consent may be sought

• Whether disclosure would breach confidentiality or cause harm

Whilst data rights cannot be overridden by a contract, it is wise to clarify in the joint therapy agreement how access to information requests will be handled should they arise. This provides you with the opportunity to provide clarity and ​​reduce risk of misunderstanding and conflict if a request is later made.

Legal Compliance When Providing Couples Therapy

To stay legally compliant and professionally responsible when offering therapy to couples, therapists should:

• Use clear written contracts that address joint and individual confidentiality and rights

• Ensure a joint therapy agreement is consented to by both parties and makes the terms of the purpose and scope of the therapy clear

• Keep records for individual sessions completely separate from the joint sessions

• Keep records relevant and avoid recording unnecessary detail

Should you have any concerns, or if any concerns are raised, you might seek advice from a professional body, such as the HCPC (Health and Care Professionals Council). You may also reach out to Aubergine Legal for legal advice and if you need a joint therapy agreement or any other legal contracts drafted.