Published November 22, 2017

Cyber risk: we’ve all heard about it. It’s making headlines nationwide with large companies such as Target1 and Equifax2 suffering massive data breaches. Though we often don’t hear about it in the mental or allied health industries, it doesn’t mean that breaches aren’t happening. If you think about it, allied and mental health care providers—especially business entities3—are often at greater risk given the large amount of sensitive patient records they hold.

CPH & Associates is proud to offer cyber liability coverage to our mental and allied health policyholders (both individuals and business entities) to help our customers address their cyber risk concerns. When considering coverage as an allied or mental health care provider, you’ll want to make sure it protects against breaches of PHI (Protected Health Information). This is one key facet of CPH & Associates’ cyber security liability coverage. See below for a more detailed description:

cybergraphic1

Breaches of PHI (Protected Health Information): Defined under HIPAA (Health Insurance Portability and Accountability Act), PHI includes any medical record (electronic, written or oral) that can individually identify a patient. Examples include billing information, diagnoses, visit/referral notes, test results, prescription information, scheduling communications, or any other personally identifiable information used or disclosed by a provider during the course of care. HIPAA’s Privacy and Security Rules require that “covered entities” (those that are covered by HIPAA, including all healthcare providers, insurers, etc.) maintain reasonable and appropriate administrative, technical, and physical safeguards to protect medical records. Any breach of PHI requires notification to the Department of Health and Human Services’ Office for Civil Rights (OCR), which has broad authority to investigate breaches, require corrective action, and/or reach monetary settlements (a type of regulatory fine) with covered entities found to be out of compliance with the regulation. In addition to the OCR, 48 states have their own breach notification laws which require timely investigation and notification of any such breach to the state’s affected residents – these laws are enforced by the state attorneys general.

“Realistically, though, can this happen to me?” Yes it can. Here are just a few more recent examples of data breaches specifically affecting mental and allied health professionals:

  1. cybergraphic2Thousands of patient records in New York were leaked from a New York hospital this year4 due to a cyber security breach, exposing medical diagnoses, HIV status’ and reports of sexual abuse and domestic violence. (Referenced article published May 2017)
  2. In Maine, thousands of patient records were compromised in a cyber security breach5 at a Behavioral Health Center, risking patient clinician notes and diagnoses, addresses, Social Security numbers and phone numbers. (Referenced article published April 2017) *Please note: CPH & Associates does not offer professional liability insurance to psychiatrists.
  3. Hackers gained access to Burrell Behavioral Health Patient information6 via a cyber security breach in Springfield, Missouri, compromising patient’s names, addresses, Social Security numbers and even “protected” medical records. (Referenced article published October 2016)

Picture this:

A therapist accidentally leaves his laptop at a coffee shop, only to return later and discover it has been stolen. Contained on the laptop were 75 patient files from the past three years, including insurance information and session notes. Unfortunately, the laptop was not encrypted, so the therapist’s attorney determines that this constitutes a reportable breach of PHI. The OCR is notified of the breach, along with the state Attorney General. Breach notifications must be mailed to all affected patients and credit monitoring services are offered in accordance with statutory requirements. Although no further regulatory action is taken, the therapists total expenses (legal, notification, credit monitoring) are $15,000, which is covered under the Security Event Costs portion of his policy. 

Whether caused by hackers or simple human error, data breaches are a real threat to professionals in the mental health field. Consider protecting yourself from these increasingly prevalent—and costly—privacy events by adding Cyber Liability coverage to your Professional Liability policy. For detailed information about Cyber Liability cost & coverage amounts offered by CPH & Associates, click here!


Please note: Cyber liability is NOT a stand alone insurance policy offered by CPH & Associates. To take advantage of cyber liability, you will need to have a mental / allied health malpractice insurance policy through CPH & Associates and add cyber liability onto that policy. Additionally, cyber liability is designed to protect digital privacy of your client’s information and DOES NOT cover loss of personal property. For Personal Property coverage, please inquire about CPH TOP which includes General Liability AND Personal Property coverage as an extension to your professional liability.

*As of May 2022, cyber liability is NOT currently available in the following states: Alaska and will never be offered to the states of North Dakota and New Mexico.


References:

  1. Finkle, Jim. Skariachan, Dhanya. “Target cyber breach hits 40 million payment cards at holiday peak.” Web blog post. Business News. Reuters, 18 December 2013. https://www.reuters.com/article/us-target-breach/target-cyber-breach-hits-40-million-payment-cards-at-holiday-peak-idUSBRE9BH1GX20131219 accessed on 10/13/2017
  2. McCrank, John. “Equifax says systems not compromised in latest cyber scare.” Web blog post. Cyber Risk. Reuters, 12 October 2017. https://www.reuters.com/article/us-equifax-breach/equifax-says-systems-not-compromised-in-latest-cyber-scare-idUSKBN1CH2F3 accessed on 10/13/2017
  3. Borowicz, Stacey A. White, Courtney M. “Cyber-Attack Response Guidance for Covered Entities and Business Associates.” Web blog post. Legal News. The National Law Review, 14 September 2017. https://www.natlawreview.com/article/cyber-attack-response-guidance-covered-entities-and-business-associates accessed on 10/13/2017
  4. O’Hara, Mary Emily. “Thousands of Patient Records Leaked in New York Hospital Data Breach.” Web blog post.  News. NBC News, 10 May 2017. https://www.nbcnews.com/news/us-news/thousands-patient-records-leaked-hospital-data-breach-n756981 accessed on 10/13/2017
  5. Farwell, Jackie. “More than 4,000 patients at risk in hacking of Bangor psychiatric center.” Web blog post. Bangor. BDN Maine, 25 April 2017. http://bangordailynews.com/2017/04/25/news/bangor/more-than-4000-patients-at-risk-in-hacking-of-bangor-psychiatric-center/ accessed on 10/13/2017
  6. Elzie, Sheena. “Hackers gain access to information of Burrell Behavioral Health patients.” Web blog post. KSPR News. ABC KSPR 33, 18 October 2016. http://www.kspr.com/content/news/Hackers-breach-security-of-Springfields-Burrell-Behavorial-Health-patients-397473361.html accessed on 10/13/2017
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Over the last decade, more than 500,000 people chose CPH Insurance for liability insurance. Because our business is specialized, we are able to focus on your liability needs in a way that bigger companies are not. Our team of associates represent over 50 years of collective experience in this field, and we are able to serve a large client base while maintaining a small-office approach.

Avoiding Liability Bulletin – November 15, 2017

In my October 6, 2017 Bulletin, I reported a case of a nurse whose unprofessional conduct resulted in a lawsuit against her employer.  The patient did not win the suit but the case illustrates how professional misconduct can result in a lawsuit alleging professional negligence on your part.

Professional misconduct can also lead to discipline by your state board of nursing based on the language in your state nurse practice act and its rules.

I thought you might like to review some of the many disciplinary actions taken by various boards of nursing based on professional misconduct by RNs.  Some of the cases involve patients while others are based solely on the misconduct of the nurse licensee.

Board of nursing final disciplinary actions are public records.  If your state board of nursing selects to do so, it can list their decisions on its website for anyone to examine.

What follows are a few of the charges and actions taken by boards of nursing that I reviewed on several board websites that I thought you might be interested in.

  1. An RN pled guilty, and was found guilty, of State Benefits fraud. DISCIPLINARY ACTION—License suspended for one year.
  2. An RN failed to maintain professional boundaries with a patient and used “intoxicants” to the extent or in a manner injurious to herself or others. DISCIPLINARY ACTION—License revoked.
  3. An RN did not cooperate with the board of nursing during an investigation of her conduct. DISCIPLINARY ACTION—License suspended for a minimum of 14 days.
  4. An RN violated a patient’s right to privacy. DISCIPLINARY ACTION—Nurse was reprimanded.
  5. An RN’s documentation was inaccurate, she removed supplies from the workplace without authorization, and failed to conform to essential standards of acceptable nursing practice as defined in the state nurse practice act. DISCIPLINARY ACTION—Nurse was reprimanded.
  6. An RN left her nursing assignment without properly notifying her supervisor, documented inaccurately and incompletely, and failed to conform to essential standards of applicable nursing practice as defined in the state nurse practice act. DISCIPLINARY ACTION—License suspended for one year followed by one year of probation.
  7. An RN submitted timecards to her healthcare staffing firm for work she did not do at a healthcare facility in the amount of $40,510.44. DISCPLINARY ACTION—License indefinitely suspended for a minimum of seven years, a fine of $1000.00, and assessed costs for the investigation in this matter.
  8. An RN was observed making an inappropriate comment to a patient she was trying to return to bed. When the patient became combative, the RN grabbed the patient’s arm and said:”You don’t hit me, do you understand? Nobody has a right to hit me”.  She then “leaned into” the patient and said: “If you hit me, you are a dead man”.  DISCIPLINARY ACTION—A Warning was issued in respect to this nurse’s license.  The RN was also admonished to continue to meet all nursing board requirements for maintain a license, license renewal and license reinstatement.
  9. An RN was more than 30 days delinquent in paying child support obligation. DISCIPLINARY ACTION –License suspended.
  10. An RN falsified prescriptions. DISCIPLINARY ACTION—Indefinite suspension of license for a period of 2 years.

It is important to note that the disciplinary actions taken against the RNs involved took place after all legal protections for the nurse and procedural mandates were met.  Even so, the disciplinary actions persist and adversely affect the nurse licensee’s professional and personal reputation.

Moreover, an RN who is disciplined with a suspension or probation must petition the board for a reinstatement of his or her license or removal of the probation.  These procedures take time to complete, so the discipline remains in force until it is terminated by the board.  In addition to the time involved, the RN will most likely need legal representation to do so at the nurse’s own expense.

Boards of nursing make different decisions concerning allegations before them.  In one state, a form of professional misconduct may result in a suspension while in another state that same transgression may result in a reprimand or probation.

You may not agree with the results of the boards of nursing in this brief review. You may see one board as too harsh or another not harsh enough based on the allegations as presented here.

One thing is certain: You do not want to test how your board of nursing responds to allegations of professional misconduct, whatever they might be.  Rather, you need to be ever mindful of your conduct and its repercussions. Because you are a licensed professional, you must avoid professional wrongdoing at all costs.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Avoiding Liability Bulletin – November 2017

Perhaps the better question presented by this title should be the question of whether an AED should be used rather than if it has to be used in health and fitness facilities by health and fitness professionals?  However, that question presents a whole host of other legal and moral issues, all of which can’t be answered in this short column and most of which need to be addressed through individualized legal analysis and advice.  But the issue of the legally required response to emergencies occurring within various exercise programs carried on by fitness professionals is of significant concern to the industry and needs to be reviewed.

As a starting point, the deployment of automated external defibrillators (AEDs) to be used in response to various emergency situations, including those arising in health and fitness programs, has been proven to save lives.  Their ability to be effective depends upon a whole host of matters, including the following:

  • Are AEDs in place in health and fitness facilities as required by state law/regulation and/or as part of the standard of care owed to clients?
  • Are health and fitness personnel trained in AED use in accordance with the requirements of state law/regulation and/or as part of the standard of care?
  • Are AEDs readily and timely available in the event of need?
  • Are AEDs maintained in accordance with manufacturer requirements and ready for use?

In some states, laws have been adopted requiring the placement of AEDs in health and fitness facilities.  Regulations are also often adopted in conjunction with such state laws which expand upon the issue of what might be done with such devices in health and fitness and/or other settings.  These laws and regulations typically deal with the placement of such devices and the training of personnel in the use of them.

Not all states have adopted laws or regulations dealing with AEDs in health and fitness facilities.  In these states which have adopted these laws and regulations, the question has arisen as to whether health and fitness professionals must use AEDs when use appears to be necessary or beneficial depending upon the facts and circumstances presented in particular situations.  Courts in the states of New York and Maryland* have looked at this issue based upon the state laws and regulations in place in those states.  In both states, the courts which have examined the issue have concluded that even though AEDs were required to be in place in health and fitness facilities in those states, fitness personnel were not required by statute or regulation in those states to use them.[1]  In the majority of the other states which have AED laws/regulations requiring the presence of these devices in health and fitness facilities, courts in those states have not yet ruled on the issue.

Due to the foregoing, individual legal counsel in states other than New York and Maryland* needs to advise health and fitness facilities as to what may be required by specific state laws and/or regulations on the matter.  Once such individualized legal assistance is secured then appropriate action may be directed to address the potential ramifications of such laws either like that decided in New York and Maryland* or otherwise.

Aside from the foregoing issue moreover, individualized legal counsel also needs to address the issue of whether or not the so-called standard of care – aside from the language of any state statute or regulation – requires the presence and use of AEDs in health and fitness facilities, even in those states where no statutory or regulatory requirements deal with this AED issue.  Once such advice is obtained facilities in conjunction with their legal counsel may set the parameters of what facilities and fitness professionals need to do with AEDs in their emergency response efforts.


This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented.  It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work.  If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought.  Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations


[1] Trim v YMCA of Central Maryland, Inc., 165 A.3d 534 (Md.App. 2017), Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY 3d 342 (2013).

*Please note, CPH & Associates’ Wellness & Fitness Professional Liability Policy is not available the state of Maryland.

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Avoiding Liability Bulletin – November 1, 2017

In accordance with a physician’s order, it is necessary that a patient get out of bed and walk as soon as possible after surgery.  In the following case1, the patient’s ambulation did not go as well as expected.

Mrs. McBee was admitted to a nearby medical center for a hysterectomy.  Leslie Glaser was one of her post-operative RNs.

Two days after surgery, an order was written to ambulate the patient.  Ms. Glaser tried to walk the patient at about 10:00 a.m. but she became dizzy and felt ill, so the patient was placed back in bed.  Mr. McBee, the patient’s husband, was with his wife during this attempt.

Ms. Glaser tried to ambulate the patient again at around 1:30 p.m. As soon as Mrs. McBee got out of bed, she again became dizzy and fell, fracturing her ankle. Mr. McBee was not present when his wife fell.

The McBees filed a lawsuit against the medical center and its owner, alleging that Ms. Glaser “negligently permitted her to ambulate without adequate assistance and support”.1

The medical center filed a Motion for Summary Judgment along with the affidavit nurse Glaser.  Her affidavit stated that she had complied with the applicable standard of care for the post-operative ambulation of surgical patients.

Because the McBees did not file any expert affidavits to counter Ms. Glaser’s affidavit, the trial court granted the Motion in favor of the medical center.

The McBees filed an appeal of the decision, pleading that they should not have been required to file any expert affidavits either because their complaint was based on simple negligence (not professional negligence) or that the RN’s negligence was “so plain” that no expert testimony was necessary.

The appeals court carefully reviewed the evidence in the trial court and the applicable law. Ambulating a patient after surgery, the court opined, requires assessment of the patient and the proper choice of the method of ambulation.  These responsibilities require “specialized skill and training not ordinarily possessed by lay persons”.

Therefore, the court continued, the complaint against the medical center was one of professional negligence (“medical malpractice”) and not one of “simple negligence”.  As such expert testimony is required.

As to the McBees allegation that the RN’s conduct was so plain that no expert testimony was needed, the court struck down that position. Ms. Glaser’s affidavit attested to her compliance with the standard of care, detailing that she “had her right arm under the patient’s left armpit “and her left was on the patient’s left forearm.

In contrast, Mrs. McBee’s version of the situation was that the nurse was “more than an arm’s length away from her and that Glaser offered no assistance when she got out of bed”.

The court decreed that the McBees’ version of the fall simply did not support a plain violation of the RN’s standard of care.

The Summary Judgment granted to the medical center was upheld and the case was remanded back to the trial court for whatever further proceedings might be required.

The McBee case illustrates several important procedural aspects of a professional negligence case.  As I have pointed out in several Bulletins, a professional negligence case requires expert testimony in order for a jury to determine whether the standard of care was met or breached.

The experts for each side “educate” the jury as to what the standard of care is in the case before them and then state their opinion about the conduct of the health professional named in the suit.  He or she is an independent health professional who has no involvement in the suit and whose knowledge is needed to determine whether or not the standard of care was met.

In this case, the “expert” was the nurse who attempted to ambulate Mrs. McBee. This is unusual. Even so, through her affidavit, she raised facts surrounding the ambulation that the McBees were required to counter.

What is also unusual is the fact that the McBees believed their version of the RN’s conduct alone—without expert testimony about the standard of care– would be enough to win their case on both the trial and appellate level.

The case also emphasizes that when a patient injury or death occurs due to a health professional’s conduct, the case is one of professional negligence, not “simple” or “ordinary” negligence.2

Undeniably, at one time, a nurse’s negligence was not seen as professional negligence. The law overlooked nurses and the care they provided for many years, seeing them only as physician “handmaidens”.

However, as nursing developed into a respected discipline, with specialized knowledge and skill, the law saw nurses as health care professionals and required them to be accountable under a professional negligence theory when patient care went array.

The McBee case also highlights the important professional responsibilities you have when ambulating patients after surgery, including:

  1. Obtaining and following a physician’s order or protocol for a patient’s ambulation;
  2. Assessing the patient carefully before initiating walking after surgery
  3. Utilizing appropriate techniques when helping a patient get out of bed;
  4. Employing adequate patient support procedures when ambulating the patient; and
  5. Documenting factually in the patient’s medical record the success or failure of the patient’s ambulation.

FOOTNOTES

  1. McBee v. HCA Health Services of Tennessee, M2000-00271-COA-R3-CV (Tenn. Ct. App. 2000).
  2. The standard of care in “ordinary” negligence is what an ordinary person would do in the same or similar circumstances.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Avoiding Liability Bulletin – November 2017

In the September 2017 issue of this Avoiding Liability Bulletin, I raised several questions regarding the related but different principles of confidentiality and privilege. More particularly, I wrote about a situation where a licensed mental health professional reveals to a spouse the identity of a patient who enjoys some degree of notoriety in the community. The practitioner cautions the spouse about the sensitive and private nature of the information and discloses a few details about the treatment. The following questions were asked:

Has the practitioner breached confidentiality? Is there a husband/wife statutory privilege for confidential communications in the state? Does the fact that the communication between the practitioner and the spouse is privileged help in the defense of the practitioner during a licensing board enforcement action alleging breach of confidentiality? Are all communications between a licensed mental health practitioner and patient confidential? Are all privileged communications between a mental health practitioner and patient confidential?

Yes, the practitioner has breached confidentiality. The practitioner revealed both the identity of the patient (the fact of the relationship) and some of the details of the treatment (which would necessarily include the content or subject matter of the communications between patient and practitioner). While the cautions issued to the spouse are wise, they do not obviate the wrongful breach. I have previously written about the view or argument that the fact of the relationship alone may not be covered by the law related to breach of confidentiality, but when coupled with the sharing of the details of treatment, the wrongful breach seems clear. The particulars and nuances of state confidentiality and privacy laws and regulations, and the case law, would obviously affect the answer to the question of whether the fact of the relationship alone is technically protected.

Some may ask about the likelihood that confidential information would be shared with a practitioner’s spouse and the likelihood that such a breach would ever be discovered by the licensing authority. I leave the answer to the first part of the question for the reader to ponder. My experience with this issue has been that the licensing board may find out about the breach as a result of a deteriorated relationship between practitioner and spouse, including a bitter divorce/child custody battle. The spouse may raise the matter during the divorce/custody proceeding (there generally is no “husband-wife privilege” in a proceeding brought by or on behalf of one spouse against the other spouse) and may be referred to the licensing board, or the spouse may initially raise the issue of breach by contacting the licensing board.

While the likelihood of such a situation arising is hopefully minimal, the principles involved (the differences between confidentiality and privilege) are worthy of exploration.

There likely is a “husband/wife privilege” for confidential communications in your state of practice. As with the psychotherapist-patient privilege, the so-called husband/wife privilege involves the question of whether testimony in a legal proceeding or administrative hearing will have to be given (or can be blocked by a holder of the privilege) and whether the privilege will protect the confidential communications from disclosure in the particular proceeding. In California, the so called husband-wife privilege is called the “privilege for confidential marital communications.”  The privilege provides, in significant part, that a spouse has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he/she claims the privilege and the communication was made in confidence while they were spouses. The specific provisions of this statutory privilege, as they exist in a particular state, become crucial when and if the mental health practitioner attempts to prevent the spouse (or ex-spouse) from testifying at the legal proceeding or the formal hearing by claiming or asserting this privilege.

The practitioner might argue that the communications with the spouse were confidential because the spouse was cautioned about the sensitive and private nature of the information and because of the special relationship, recognized in law, between husband and wife. If a court (or administrative law judge) believes that the communications between the practitioner and the spouse were intended by both to be confidential, the judge might find that the privilege applies – thus allowing the practitioner to block the testimony of the spouse. Without the spouse’s testimony, the enforcement action by the licensing board may be substantially weakened.

Counter-arguments would of course be advanced and might be persuasive in a particular case– thus allowing the testimony of the spouse to be obtained because the privilege for confidential marital communications is found to be inapplicable. For example, perhaps the privilege does not apply in licensing board/administrative proceedings (in a particular state). Or perhaps, and not uncommonly, the court or administrative law judge makes an incorrect or questionable ruling because of the desire to obtain relevant and material evidence – perhaps the only such evidence that exists. The more relevant and material the testimony, the more likely it may be that a court or administrative law judge will incorrectly rule against the existence of the privilege. Court challenges and appeals from such adverse rulings can be expensive and thus unlikely.

In the event that the testimony of the spouse is allowed, the fact that the information was disclosed to a spouse, with cautions, might be used by the practitioner to argue for a more lenient “punishment” if the government proves its case. The practitioner might point out that while confidentiality was breached, the privilege belonging to the patient was not compromised and the disclosures were limited – both as to content and person.  A principle of law in California that applies to the psychotherapist-patient privilege and the privilege for confidential marital communications is that a disclosure that is itself privileged is not a waiver of any privilege. The practitioner would thus point out that since the communications with the spouse were privileged, there was no waiver or compromise of the psychotherapist-patient privilege held by the patient – and that the harm to the patient (caused by the breach of confidentiality) is limited in scope. Revealing patient information to one’s spouse (with cautions) is not the same situation as revealing such information at a large party while intoxicated – but both are breaches of confidentiality!

With respect to the last two questions asked above, all communications between a licensed mental health practitioner and patient are not confidential. Mental health practitioners sometimes communicate with patients in situations where there is no expectation of confidentiality or where the law mandates or permits otherwise confidential information to be disclosed. All privileged communications between a licensed mental health practitioner and patient are confidential, since in order for a communication to be privileged as a matter of law, it must be a confidential communication between practitioner and patient made during the professional relationship – that is, during the course of the diagnosis and treatment of the patient. In California, and I suspect elsewhere, a privileged communication includes information obtained by an examination of the patient, the diagnosis made, and the advice given by the practitioner in the course of the professional relationship.

DUE PROCESS

What due process protections exist for you in your state of practice if you are ever accused by the licensing board of unprofessional or wrongful conduct? I recently received a call from a therapist (and have received similar calls for many years) who informed me about the lack of adequate due process protections in her state and inquired about the best way to effectuate changes to the system (not to be discussed here). Before changes can reasonably be expected, and before demands are made, it is important to understand and appreciate that “due process” in criminal proceedings is far different (and more protective) than “administrative due process” in licensing board enforcement actions. Thus, persons accused and prosecuted for crimes (felonies and misdemeanors) have due process rights significantly greater than licensees of the State who are accused of unprofessional or wrongful conduct.

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

Learn more about Richard Leslie