March 31, 2022

SCOPE OF COMPETENCE/SCOPE OF LICENSE

Avoiding Liability Bulletin – April 2022

NOTE: The following article was first published on the CPH Insurance’s website in October 2011. It appears below with minor changes.

SCOPE OF COMPETENCE/SCOPE OF LICENSE

May a licensed marriage and family therapist, psychologist, LCSW, or a licensed professional clinical counselor provide a patient or client with some kind of nonsexual massage or touch to relieve pain or discomfort? If they do, are they necessarily liable in a negligence action brought by an aggrieved patient? May a licensed professional clinical counselor diagnose and treat any mental disorder, regardless of the severity of the disorder? May a licensed marriage and family therapist or a licensed mental health counselor perform psychological testing with their clients? May licensed mental health professionals provide “life coaching” to clients? Do licensed psychologists have a broader scope of license than licensed professional clinical counselors, LCSWs or licensed marriage and family therapists? These questions all relate to the joint concepts of scope of license and scope of competence.

When discussing scope of license (sometimes referred to as scope of practice), I am referring to the statutory authority granted by the state in the licensing law for the particular profession. As was explained in a California Attorney General’s opinion that I read many years ago related to licensed marriage, family, and child counselors, in the beginning, there were physicians. Physicians historically have had the broadest scope of license that exists – that is, they were statutorily granted the right to treat any kind of blemish, deformity, disfigurement, ailment or disorder, whether physical or mental. Thereafter, the legislature granted to other health care professions the right to practice what was previously within the exclusive province of the physician, but granted a more limited scope of license or practice to the newly regulated profession. These new licensees, whatever their particular licensure, were expected to practice within the scope of the authority granted in the licensing law.

With respect to mental health practitioners, the “turf wars” between the professions in the various states have created somewhat of a legislative and legal morass. Although the scope of license sections of the various professions vary in language, there is very little difference in some states in the actual practices between licensed clinical social workers, licensed marriage and family therapists, licensed psychologists, and licensed professional clinical counselors, despite efforts by some to assert otherwise. All of these professionals treat or provide a wide range of mental health and counseling services to adults, children, couples, families, and groups. All of these professions may be permitted to practice psychotherapy and may diagnose and treat mental disorders – and be reimbursed by federal and state programs or by private insurers for doing so. While there will be variances with this reality in some states because of the specifics of state law, these similarities in practice are the case in many states.

While physicians have a broad scope of license, as described above, they are generally not allowed to practice outside the scope of their competence, as determined by their education, training, or experience. Thus, while physicians may be permitted by state law to perform surgery, most physicians do not perform such services because it is outside the scope of their competence. Likewise, while mental health professionals may be permitted by state law to diagnose and treat mental disorders, state law will usually attempt to restrict the scope of the services actually rendered by providing that licensees are “guilty” of unprofessional conduct for acting outside the scope of their competence – as established by one’s education, training, or experience. Thus, while one may be acting within the scope of the license, they may also be acting in a manner that can result in a disciplinary action by a licensing board (e.g., for gross negligence or incompetence) or that subjects the actor to civil liability for negligence, gross negligence, or incompetence.

Suppose that during the course of therapy a licensed mental health practitioner provided some kind of physical touch or massage to relieve a patient’s shoulder pain. Such acts would likely be outside the scope of the practitioner’s license, and the practitioner would be subject to disciplinary action by the licensing board. The practitioner might also be subject to a criminal penalty for practicing medicine or physical therapy without a license. But, is the practitioner necessarily liable in a civil suit for monetary damages where the plaintiff alleges physical and/or emotional harm as a result of the practitioner’s negligence? Arguably, there should be no liability unless the plaintiff proves that the practitioner performed the services in a negligent manner or in bad faith. There may be other theories of liability that the plaintiff can establish, but on the issue of negligence, the practitioner may prevail if it is demonstrated that he or she provided competent care or that the plaintiff did not in fact suffer injuries or harm as a result of the massage or touch. The practitioner’s malpractice insurer will likely deny coverage for the claim or the lawsuit if the practitioner did not perform services that the insurer agreed to insure (e.g., was not practicing the profession covered by the policy).

The issue of psychological testing has historically been a battleground for the professions, with the psychology profession maintaining that this is their exclusive turf. In reality and in practice, that is not the case in many states. As a practical matter in some states, if a licensed mental health practitioner is competent, by reason of his or her education, training, or experience, he or she may perform psychological testing as part of the diagnosis or assessment of the patient being treated. Additionally, in some states, marriage and family therapists and other licensed professionals may lawfully perform psychological testing as a part of their role as custody evaluators, or in some other capacity and for some other purpose. Then there is the issue of the legality or appropriateness of doing psychological testing with patients who are referred to the practitioner not for treatment purposes, but for testing purposes only. State law and other legal authority may limit the right to do such psychological testing for certain professions in particular states – thus, practitioners need to first ascertain the legal/regulatory situation in their state of practice.

NOTE: The following article was first published on the CPH Insurance’s website in November 2009. It appears below with minor changes.

CONFIDENTIALITY – COOPERATION WITH CHILD ABUSE INVESTIGATORS

While mental health practitioners must be mindful of the duty of confidentiality and must instinctively lean toward resisting (at least initially) disclosures without the patient’s signed authorization, it is also useful for practitioners to know well the exceptions to confidentiality – both those that are required and those that are permissible. When some form of disclosure is mandated by law, the decision of the practitioner (assuming awareness) is relatively easy. When the disclosure is permissive, it does not necessarily follow that the practitioner should or will disclose without a written authorization. Those decisions regarding disclosure may be more difficult. A hopefully interesting example appears below.

The primary and most significant exceptions to confidentiality are found in the laws dealing with the mandates for mental health practitioners to report known or reasonable suspicion (or a similar standard) of child abuse, elder abuse, and dependent adult abuse. Connected with these duties is the issue of whether or not a practitioner, after making such a report, is required or permitted to cooperate with the investigator of the abuse, who seeks further information and perhaps appears (either announced or unannounced) at the office of the practitioner who made the report. In one state, for example, the law provides that information relevant to the incident of child abuse or neglect may be given to an investigator from an agency that is investigating the known or suspected case of child abuse or neglect.

What is the law in your state with respect to providing information to the investigator after you have filed the mandatory report? I have counseled psychotherapists involved with this issue for many years – and each situation is different. For example, if the therapist were treating the alleged perpetrator of physical or sexual abuse that was revealed and reported during the course of therapy, I would more often than not advise the therapist not to cooperate with the investigator. Of course, if the therapist discusses the matter with the patient and/or with the patient’s attorney, the patient may want to sign an authorization allowing the therapist to communicate with the investigator. While the law in a particular state may permit communication with the investigator without the patient’s written authorization, it may not mandate it. In that regard, my view has been that the reporting laws are a significant intrusion into confidentiality and privacy (although well-accepted at this time), but that there is no duty to help officials with an investigation.

If the practitioner is treating the victim of the abuse, such as a child, the practitioner may be more inclined to cooperate with the investigator. Again, even though the practitioner would be permitted to cooperate with the investigator pursuant to the applicable law, that isn’t always the wisest decision. In some cases, the written authorization of both parents might be desired and easy to get, while in other cases, the written authorization of only one of the parents may be necessary. In some states, depending upon the age of the child and the circumstances involved (such as, being the victim of child abuse), only the child’s authorization may be needed. There may be times when a practitioner may choose to provide additional information to the investigator without the patient’s authorization – but the practitioner must first be certain that state law allows this to be done.

Download PDF

About the Author

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

March 1, 2022

HIPAA’s PRIVACY RULE and STATE PRIVACY/CONFIDENTIALITY LAWS – CONFLICTS

Avoiding Liability Bulletin – March 2022

HIPAA’s PRIVACY RULE and STATE PRIVACY/CONFIDENTIALITY LAWS – CONFLICTS

Mental health practitioners and health care entities must determine whether or not they are “covered providers” or “covered entities” under HIPAA and the federal regulations implementing HIPAA. If they are not, then the practitioner is typically governed by state privacy and confidentiality laws and regulations. If they are a covered entity or provider, then they must comply with the federal regulations implementing HIPAA known as “the Privacy Rule.” Generally, if a covered provider or entity encounters a conflict between the Privacy Rule and a state law, the state law is pre-empted by HIPAA.

HOWEVER, there are important exceptions to this preemption. One such exception is where the state law relates to the privacy/confidentiality of individually identifiable health information and provides greater privacy protections or privacy rights with respect to such information than the Privacy Rule does. Another exception is where the state law provides for the reporting of child abuse. In those two circumstances, the state law is not preempted by HIPAA’s Privacy Rule. A third exception (where the Privacy Rule does not preempt state law) is where the state law provides the patient with greater access to the treatment records than does the Privacy Rule (e.g., the right to copy or inspect treatment records).

PRIVILEGE – TREATING A COUPLE

NOTE: This article was first published on the CPH Insurance’s website in 2010. It appears below with minor changes.

The psychotherapist-patient privilege, or a similarly titled privilege, generally belongs to (is held by) the patient, or the guardian or conservator of the patient, or the personal representative of the patient. This means that these holders of the privilege may prevent the practitioner from disclosing information (e.g., testifying at a deposition or in court) or providing records pertaining to the treatment of the patient in a legal proceeding. Or, these holders may waive the privilege and allow such disclosure. But what happens with respect to the privilege when a practitioner is treating a couple? Does the privilege exist or is there a waiver? If so, who is the holder of the privilege? How will the courts view a claim of privilege by either member of the couple or by both? How should the psychotherapist respond to a subpoena for records or for the testimony related to either member of the dyad? The answers to these questions follow.

The importance of the psychotherapist-patient privilege to the mental health professions cannot be overstated. Without the existence of a privilege, a patient’s confidentiality would be jeopardized anytime they were involved in a lawsuit or other proceeding – that is, the therapist or counselor’s testimony and treatment records could simply be compelled by subpoena. Legislatures throughout the country have established privileges for only a few special relationships – such as lawyer-client, priest-penitent, physician-patient, and psychotherapist-patient – in order to encourage consumers to obtain such services without the fear that their confidential and highly personal (sometimes embarrassing) information disclosed in the course of those relationships might later be revealed in a courtroom. The existence of a privilege generally means that there is an exception to the general principle of law which provides that no person has a privilege to refuse to be a witness or disclose any matter, or refuse to produce any writing, in specified legal proceedings.

I must issue my usual caution that state laws vary, sometime in fine nuance, so the reader must determine whether the state law differs (and if so, how it differs) from what is presented in this article. As stated above, the privilege generally belongs to the patient. It has been my position that if the therapist considers his/her patient to be the couple, then the couple is the holder of the privilege. Some commentators have indicated that the courts do not always agree with that position – that is, they do not recognize that the couple is the holder of the privilege. However, my experience in California indicates otherwise. While a judge may properly rule that a privilege has been waived, or may erroneously rule that there is no privilege because the court is determined to consider all relevant evidence and is willing to risk reversal on appeal, I have found that judges in California recognize that a couple may be the holder of the privilege.

With respect to the questions asked above, it is first important to distinguish between true couple therapy, where the couple has been informed that the couple (as a unit) is the identified patient, and treatment of one patient (the identified patient) and only collateral contact with the other spouse or partner. I make the assumption in this article that the practitioner involved in the particular state is recognized as being covered by the privilege. It is of course important to determine whether the law in your state recognizes that there may be joint holders of the privilege, and if so, the particular provisions. In California, the law specifies that there may be joint holders of the psychotherapist-patient privilege. More specifically, the law states that where two or more persons are joint holders of the privilege, a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege.

If a law recognizes that there may be joint holders of the privilege, then it would seem likely that the courts would recognize that each of the persons in couple therapy are covered by the privilege – and, that one cannot waive the other’s privilege and that each may claim or assert the privilege. If the state law is silent on the issue, it seems to me quite possible (and reasonable) that a judge could be persuaded to take the same position as above — especially if there is an effective advocate for that position and no law provides otherwise.

1) Suppose that a therapist or counselor, covered by the psychotherapist-patient privilege (or similarly titled privilege) is treating a couple – doing couple therapy/counseling. Suppose that one of them, mildly depressed, is suing a surgeon for malpractice, alleging that the negligent surgery performed caused physical injuries and mental or emotional distress. Suppose that the attorney for the defendant- physician subpoenas the records of the therapist or counselor.

2) Suppose that a couple is going through a divorce and fighting over custody of their children, and that they were previously in couple therapy with a practitioner covered by the psychotherapist-patient privilege (or similarly titled privilege). Each of the participants in couple therapy were seen individually for one session – but they each acknowledged in advance that these individual sessions were to be considered as part of the couple work. In the custody proceeding, the husband’s attorney subpoenas the records of the practitioner after the practitioner refuses to release the records upon the signed authorization of only the husband.

In the first case, where the allegation is made that the negligent surgery caused mental and emotional distress to the plaintiff, it is likely that a court would rule that the psychotherapist-patient privilege, held by the patient, was waived (given up) by the plaintiff because the plaintiff put into issue (tendered) in the lawsuit their emotional and mental condition. The law would not allow plaintiff to attempt to prove that such harm was caused by the surgeon without allowing the surgeon (defendant) the opportunity to prove otherwise. The records and the testimony of the therapist may be relevant to the lawsuit and helpful to the plaintiff or the defendant, depending upon the circumstances. For example, perhaps the plaintiff mentioned the botched surgery on several occasions and that several sessions addressed some of the psychological effects of the surgery.

The couple’s therapist, however, upon receiving the subpoena, would typically assert the privilege, release nothing, and immediately contact the patient who is suing and the patient’s attorney. The practitioner would raise the issue of the partner’s privacy and the fact that the privilege is held by the patient – that is, the couple – and that one cannot waive for the other (assuming that state law and professional ethics would support or allow this position). The solution for the attorney for the plaintiff would be to either obtain the permission of the plaintiff’s partner to waive the privilege, or to seek a protective order of some kind so that only information pertaining to the plaintiff is revealed. Courts are able and willing to accommodate this kind of request, and will even be willing to allow the practitioner to redact, write a summary, or otherwise protect the privacy of the non-litigant partner.

With respect to the second case, the practitioner would typically and initially assert the privilege on behalf of the couple. Ultimately, the attorneys for the husband and wife would discuss the issue (arguing their own views based upon what’s good for the particular client) and come to some agreement – or they will litigate the issue. An interesting question in custody battles is whether or not a party puts his or her mental or emotional condition into issue by filing for sole custody of a child – and thereby waives any privilege that might otherwise exist. We need not decide that question here. Consistent with state law and with avoiding a contempt citation, the practitioner will want to create a record of resistance to disclosure unless or until all parties agree or the court issues an order deciding the claims of privilege or waiver. Practitioners typically do not get into trouble for resisting in good faith.

With respect to the issue of the individual sessions, it would be my argument, and I would trust the court’s ruling, that these sessions should be treated like the conjoint sessions – that is, they were part of the ongoing couple therapy or counseling. I would argue that the privilege belongs to the couple – even with respect to the individual sessions. Communications made in the individual sessions would likely involve material and issues that were discussed in the conjoint sessions. One holder of the privilege cannot waive for the other. The clarity of the practitioner’s disclosures regarding how these sessions are to be viewed, as well as the clarity of the patient acknowledgements should, in my view, be persuasive to the court – unless the state law does not allow for such a conclusion.

Download PDF

About the Author

Richard Leslie

Learn more about Richard Leslie