Avoiding Liability Bulletin – June 2005

… One of the public policy principles that the HIPAA regulations were influenced by was the public policy incorporated in one state’s laws on confidentiality (applicable to physicians and mental health practitioners) to the effect that a therapist does not need a written and signed authorization from the patient in order to release confidential information about the patient to other licensed health professionals or licensed health facilities for the purposes of diagnosis and treatment of the patient. While therapists would be wise to obtain a signed authorization whenever possible, it is useful to know whether or not such disclosures are permissible in your state, and if so, the circumstances and conditions under which such disclosures may be made.

It is important to know this for several reasons. If there is no law applicable to your license allowing such disclosure without the patient’s authorization, perhaps there ought to be, and changes in the law can be initiated by interested organizations, using the HIPAA regulations as a model. If there is such a law applicable to your practice, you might want to (or may be required to) inform the patient, at the outset of therapy, of such right to disclose.

Once it is explained to them, patients usually understand that it is necessary, in order to render competent and effective care (and in order to avoid liability for negligence), for the health practitioner to be aware of past medical or psychological history and to readily share information with other providers of care in order to assure that diagnosis and treatment of the patient is based upon all relevant information.

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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.

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