October 31, 2022

Crimes and Confidentiality

Avoiding Liability Bulletin – November 2022

NOTE: Last month I wrote about a situation involving the intended dangerous behavior of a patient – some of which would constitute criminal conduct if carried out. The article briefly addressed the issue of how the duty of confidentiality is affected by the criminal conduct of the patient. This article addresses that issue more fully. It was first published on the CPH Insurance’ website in February 2015, and appears here in substantial part.

CRIMES AND CONFIDENTIALITY

In the December 2014 issue of the Avoiding Liability Bulletin I asked a series of questions related to past criminal acts committed by adult patients and how such information, gained during the course of treatment, would affect the mental health practitioner’s duty of confidentiality. This article will explore some of those questions and the public policy and professional issues raised by them. The questions assume that the practitioner is licensed to provide mental healthcare, that the practitioner is acting in a treating role rather than in an examining role, and that the practitioner is providing services in a private practice setting. The laws of each state may vary, sometimes in fine nuance, on some of these questions and with the comments that follow. Thus, the discussions below should not be taken as legal advice in particular situations, but are meant to stimulate thought, discussion, and research.

The duty of confidentiality is critical to the effectiveness and acceptance of the various mental health professions in particular, and to society in general. Those in need of mental health treatment will be more likely to seek and obtain mental health care, where they may have to reveal the very personal and sometimes compromising, embarrassing, or incriminating details of their lives, if they feel reasonably secure that the communications between them and their therapists will remain confidential. Without full and open communication between psychotherapist and patient, the likelihood of successful treatment may be defeated, diminished or delayed. Full and open communication can occur more easily and naturally when the patient is assured that confidentiality is the rule rather than the exception.

HIPAA and state laws recognize the importance of confidentiality, but also recognize that confidentiality is not absolute. There are numerous public policy exceptions to confidentiality. With respect to state law, a wrongful breach of confidentiality by the licensed mental health practitioner could mean revocation or suspension of one’s license and civil/monetary liability for damages caused by the breach. Some of the exceptions to confidentiality are mandatory and others are permissive – the latter exceptions being left to the discretion of the practitioner. HIPAA and some states require that certain disclosures be made to the patient, prior to the commencement of treatment, regarding confidentiality and its exceptions. Other states may leave the manner and extent of such disclosures to the discretion of the practitioner.

Question: If patients reveal that they steal from department stores, must that be kept confidential?

Comments: I hope that the answer to this question in your state is “yes.” Patients may admit to actions that constitute crimes, such as possession of meth, cocaine, or some other illegal drug, or an offense such as an assault or battery, petty or grand theft, or other actions that violate state law. The general rule is that the already committed crimes of a patient, with some exceptions (e.g., child abuse, elder abuse, and dependent adult abuse reporting laws), are confidential. The fact that a client may be continuing to steal would likely not trigger any action by the therapist, other than continuing to treat the patient in a competent manner. Practitioners must be familiar with the laws in their respective states of practice that define the duty of confidentiality and the exceptions to confidentiality. Additionally, practitioners must be aware of any case law that affects the duty of confidentiality (e.g., the famed Tarasoff v. University of California decision of the California Supreme Court in 1974, which created the so-called “duty to warn”).

Questions: If patients reveal that they sell cocaine, must that information be kept confidential? What if the sales are to high school students?

Comments: Selling cocaine is a crime (felony) in all states. In California, if this information was shared with a therapist, the duty of confidentiality would obtain, and the therapist would not be required to make a report to a law enforcement agency or to anyone else. There is no statute that requires a report to authorities and therefore the general duty of confidentiality would be in effect. If the sales are to high school students, this presents an interesting issue. Since a child is usually defined (in child abuse reporting laws) as a person under the age of 18, one must determine whether the actions described would require a report under the applicable child abuse reporting statutes. Selling cocaine to high school students would seemingly not constitute neglect or sexual abuse. Whether or not such conduct constitutes some kind of child endangerment or physical abuse that would require a report is highly fact and situation dependent. My experience with this issue has been that usually the patient has not shared enough with the therapist to require a child abuse report, and thus, confidentiality has been maintained. The child abuse reporting laws in California impose no investigative duties on mandated reporters.

Question: If your patient tells you of a homicide committed years ago, is that confidential?

Comments: A past homicide would be treated as confidential in California. It should be noted that while a homicide often is a criminal act, it is not always a crime. For example, a homicide could be justifiable, as in the taking of another’s life in self defense. But even if the homicide described is a crime, the past crimes of the patient are confidential, and the law in California does not carve out an exception for a past homicide. Threats of future violence, including murder or serious physical injury, are a separate topic (dangerous patient) that has been generously discussed in prior articles (see the Archives).

Question: What if your patient tells you of a crime committed against a senior citizen – must that be kept confidential?

Comments: As soon as “senior citizen” is mentioned, the practitioner should be thinking about whether the actions described require an elder abuse report – whether physical abuse, abandonment, isolation, financial, neglect or otherwise. Elder abuse reporting statutes can be written rather broadly, so care must be taken to determine whether confidentiality must still be maintained or whether a report is required.

Question: What if a nineteen year-old patient tells the therapist that he had consensual sexual intercourse with his sixteen year-old girlfriend?

Comments: In California, this information would be confidential, and a child abuse report would not be required – even though the act described is a crime called unlawful sexual intercourse (statutory rape). I have spoken with many police agencies where I was calling to inform them that the “advice” they were giving therapists – that a report is required – was wrong. It is not an easy task to convince the captain in charge of the sex crimes unit that not all sex crimes against minors require a report by mandated reporters! Simply put, the law in California carves out an exception to reporting by mandated reporters for this particular age differential. The sexual intercourse must of course be consensual. What is the law in your state?

DEFINITION OF “PSYCHOTHERAPY”

I have written about this before and have shared this definition at workshops. So in case you have not read this before, I again present this thought-provoking definition – which is not of my creation. The author of this definition, Daniel B. Hogan, wrote a multi-volume work dealing with state regulation of psychotherapy. He took the position that the state should not regulate a profession that cannot be adequately defined.

“Psychotherapy is an unidentified technique, applied to unspecified circumstances, with unpredictable outcomes, requiring rigorous training”

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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.

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October 3, 2022

CONFIDENTIALITY – High Risk Behavior of Patient

Avoiding Liability Bulletin – October 2022

A CPH-insured mental health practitioner requested that I comment on a situation with a patient that raised questions about the duty of confidentiality and the exceptions to that duty. Several preliminary comments are necessary before addressing the scenario presented. First, and as I have often cautioned, the law in each state varies, sometimes in fine nuance, so readers must determine whether the law in their state of practice conforms with or differs from the legal principles and opinions discussed below. Also, it is important to remember that any change in the facts or circumstances of a particular scenario may raise different legal questions and different answers.

The duty of confidentiality is the cornerstone of the mental health professions. A wrongful breach of confidentiality can lead to civil liability for the practitioner and a licensing board enforcement action against the practitioner. In rare cases, a criminal prosecution may be possible – of course, depending upon state law. Typically, the laws pertaining to the duty of confidentiality provide various exceptions to confidentiality, which may be numerous. Some of these exceptions to confidentiality are mandatory (e.g., child abuse reporting, elder abuse reporting) and some are permissive (e.g., communications with other licensed health care practitioners or licensed health facilities for purposes of diagnosis or treatment of the patient).

The duty of confidentiality may not only be established by statute, but may also be affected by case law (e.g., a decision of the highest court in the state – like the famed Tarasoff decision of the California Supreme Court decades ago). This decision created, for California practitioners, the “so-called duty to warn” in cases where the patient presents an imminent and serious danger of violence to another. I have written about this “so-called duty” in previous issues of the Avoiding Liability Bulletin and described the actual duty created. Other states may have similar high court cases affecting the duty of confidentiality and, like California, may have enacted statutes that provide immunity from liability for practitioners who comply with the dictates of the statute in specified dangerous patient situations.

The scenario presented by the CPH-insured reader describes a patient who informs the practitioner of her interest in a high risk behavior that could lead to harm. The practitioner describes the behavior of the patient as “in the category of (something like) buying drugs, selling sexual favors, or smuggling contraband.” The practitioner discouraged the patient from moving forward with what sounded like a bad idea, but did not stand in the way of the patient’s autonomy. Since the practitioner did not know if harm had befallen the patient as a result of the patient’s possible behavior following the session, the practitioner sent a “safety check-in” to the patient and the patient confirmed her safety. Once safety was confirmed by the patient, the situation for the practitioner ended at that point.

The practitioner wondered what she would have done if the patient had not responded to the safety check-in within the time period that the practitioner considered necessary. The practitioner wondered if she should have contacted the patient’s family in the event of no confirmation from the patient. Without confirmation from the patient, the practitioner would have no knowledge of whether the patient followed through with the risky behavior described in session or whether the patient was harmed. The practitioner imagines that the patient did follow through with the behavior, but she did not know. If the practitioner had informed family members that there was not a timely response, what would be the content and purpose of such a disclosure? Would the patient’s contemplated behavior be disclosed?

Without knowing what the specific law is in the state where this occurred, it is my impression (and bias) that the patient was entitled to confidentiality. The behaviors described are in my view not particularly unique or different from the behaviors of many patients throughout the country. The behaviors involved are crimes, and likely dangerous – depending upon the circumstances. But mental health practitioners have long treated patients who may be involved in criminal or dangerous behaviors – whether they are drug users, prostitutes, sex workers, or a variety of other “dangerous” behaviors (including driving under the influence). Those patients are generally entitled to confidentiality, just like other patients with other problems.

Practitioners must be familiar with the exceptions to confidentiality, whatever state this scenario might occur in. There may be states where certain criminal behavior of a patient might have to be reported, but generally, the past crimes of the patient are confidential. In the scenario presented, the patient informed the practitioner of intended behavior, but the intended behavior was not a situation where the patient was threatening violence against others or herself. The patient was not suicidal and was not threatening self-harm. In this case, the patient was expressing her interest in a high risk behavior. Merely because the behavior contemplated was risky (and might constitute a crime) is not enough, in my view, to warrant a breach of the duty of confidentiality.

The behaviors described, while risky from a personal safety standpoint, are also risky in terms of a possible arrest for the particular behavior involved. These realities present grist for the mill of effective mental health care and counseling. I trust that there are mental health practitioners throughout the country who treat patients who engage in all kinds and degrees of risky behaviors, whether they constitute crimes or not. It seems unwarranted to break confidentiality so that a friend or family member may be informed of the behavior or the harm even if they may be able and willing to help (assuming they are not in family therapy).

Moreover, unless there is written authorization from the patient, or unless a specific law or regulation allows or mandates disclosure in such circumstances, informing others would in my view be a breach of confidentiality – which could result in a complaint to the licensing authority or a claim or lawsuit for damages. Simply because the patient may engage in risky behavior (or talk about doing so) does not, in my view, warrant breaking confidentiality and likely the trust of the patient. The practitioner would be best served to provide excellent treatment, and possibly, with the consent of the patient, and if clinically appropriate, involve family members or others in the treatment.

One may ask what would have happened if the response was timely but the patient reported that she was physically harmed. The patient could of course inform others as she desired. The practitioner would have done nothing wrong. During therapy, the practitioner had discouraged the patient from moving forward with the behavior but did not (and should not) stand in the way of the patient’s autonomy. Those who engage in risky or criminal behavior are responsible for the consequences of their actions. Hopefully, they go to mental health practitioners to get help. The practitioner’s role is to treat the patient in a clinically sound and ethical manner.

Based upon the limited information provided, it seems to me (a non-health care practitioner) that the safety check-in could have created unnecessary problems for the practitioner had the response from the patient not occurred in a timely way – possibly leading to a breach of confidentiality. Was there a prior understanding (in writing) between the patient and the practitioner regarding the expected response time and the consequences of no timely response from the patient? Are practitioners responsible for tracking patient safety between sessions, and if so, under what circumstances and how frequently should this be done?

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About the Author

Richard Leslie

Learn more about Richard Leslie