November 1, 2018

A Brief Review of Some Duties and Requirements

Avoiding Liability Bulletin – November 2018

What are the various duties or obligations of a licensed mental health practitioner? Are there both legal duties and ethical duties, and what about moral duties? Do legal and ethical duties apply only to the relationship with patients, or are they broader? Do licensed mental health practitioners in your state ever have a “duty to warn” or a duty to protect persons who are not their patients? The discussion that follows is intended to serve the purposes of reminding practitioners of just some of their numerous professional obligations and raising questions for further consideration and research. For a more in depth discussion of any of the topics covered in this article, reference to prior issues of this Bulletin is suggested.

A “duty” is generally thought of as a legal obligation, the breach of which can result in liability. But there are also broader societal concepts of moral duty and professional concepts of ethical duty. The prudent mental health practitioner should not take too restrictive a view of the concept of duty or obligation – but rather – should view the concept as expansive and applicable to various aspects of their professional lives. For example, it might be wise to view the necessity of paying the state licensing fee and the malpractice insurance premium as duties owed to oneself. Neglect or disorganization with respect to such matters often leads to various unintended negative consequences for practitioners – such as being accused of practicing without a license and not being covered by professional liability insurance when an unexpected complaint or claim is asserted. Does a practitioner have a legal or ethical duty to disclose to the patient or to the patient’s health insurer (who paid for psychotherapy services rendered by the practitioner) the fact of the temporary lack, lapse, or delinquency status of the license? Would the failure to do so constitute insurance fraud?

Confidentiality is both an ethical and a legal obligation or duty. A negligent or intentional breach of confidentiality is actionable civilly and administratively. Therapists and counselors should be aware of the many exceptions to confidentiality, some of which are mandatory and others of which are permissive. These many exceptions to confidentiality often result in disclosures to third parties without the signed authorization of the patient. Prudent practitioners typically inform patients at the outset of treatment of the major exceptions to the duty of confidentiality. Closely connected to the duty of confidentiality is the duty or obligation to assert the psychotherapist-patient privilege when information, records, or testimony is sought through the issuance and service of a subpoena for testimony at trial or deposition, or for treatment records. How and when that obligation is asserted and managed varies by state, but generally, resistance should be the initial instinct – not compliance. Once more information is obtained and the patient (and the patient’s attorney) is consulted, appropriate action can be taken.

The topic of “duty to warn” (re: dangerous patients) has been discussed by me in multiple issues of this publication. As I have often written, the so-called “duty to warn” established by the famed Tarasoff decision by the California Supreme Court (1976), was not technically a duty to warn. The duty to warn was, and to some degree still is, a misconception. The duty created by the Court was simply, but importantly, a duty or obligation to use reasonable care to protect the intended victim against the threatened danger. Each state may treat the duty differently, both with respect to the precise obligation of the practitioner and the delineation of when the duty arises. It is important to know how the duty owed to the patient who is suicidal may differ from the duty owed to a person who the patient has threatened with imminent physical violence. It is also important to know if there is a duty to the general public when the patient presents a serious danger of physical violence without specification of an intended target. (See prior articles under the headings of “dangerous patient” or “duty to warn.”)

The primary duty owed to the patient is to render competent and reasonable mental health treatment. If the treatment provided is incompetent or negligent (the reasonably prudent practitioner under the same or similar circumstances test), this well accepted common law duty is breached and a civil action alleging negligence or malpractice could result in monetary damages. Another duty owed to patients (a requirement of law) is for practitioners to inform them of whatever the state requires in the way of disclosures (which I often differentiate from the doctrine of informed consent). In California, for example, the law requires the disclosure of the fee to be charged and the true name and license designation of the practitioner who conducts business under a fictitious business name. Additionally, ethical standards may provide guidance or impose ethical duties with respect to various aspects of the practitioner-patient relationship.

With respect to consent to treat and the doctrine of informed consent, practitioners must comply with state law, with professional association ethical standards, and with their understanding and view of the extent and nature of the information that should or must be disclosed or discussed at the outset of treatment and during the course of treatment. What are the risks or perils of mental health counseling or psychotherapy? Are those risks or perils remote or minimal? Could there be a problem if too much is disclosed and discussed at the outset of treatment regarding the risks, perils, or dangers of mental health treatment? Does or should state laws or regulations specify the risks or perils of marital therapy, individual psychotherapy, or mental health counseling? Are the potential risks variable and sometimes minimal based upon the nature of the treatment and the particular patient involved? (See prior articles under the heading of “informed consent” for an in-depth discussion of this sometimes vexing topic.)

What is the ethical or legal duty, if any, when the practitioner learns that his or her patient has had sexual contact with a prior therapist? Is there or should there be a duty for the practitioner to report such information to the licensing board? Could such a report ever be made in a manner that would protect the identity of the affected patient? With respect to the duty itself, state laws typically prohibit therapist-patient sexual contact. In California, the practitioner who learns from a patient that a prior therapist had sexual contact with the patient during the course of a prior treatment is obligated to give the patient a brochure promulgated by the state that delineates the rights of, and remedies for, patients who have been involved sexually with their psychotherapists. The law also requires the practitioner to discuss the contents of the brochure with the patient.

As to whether there should be a duty to report this serious violation (a crime in many states) to the licensing board, that depends upon one’s view of and commitment to the duty of confidentiality – and the respect that the practitioner believes must be shown for the wishes and welfare of the patient. As to whether a report could be made (if a state were to require a report) in a manner that protects the confidentiality of the patient, I think the best answer is “perhaps,” but such a policy would be fraught with legal and practical issues. A credible and confidential report from a licensed mental health practitioner who is currently treating the patient who was exploited by a former therapist could, for example, trigger an undercover investigation of the named wrongdoer. But such an expensive and particularized investigation might be expected to render little meaningful results – for a variety of reasons. And, the accused practitioner would likely press to uncover the underlying reasons for the initiation of the investigation.

Therapists and counselors have multiple duties to report, and the reporting duties require reports to multiple agencies or entities within specified periods of time and by a variety of methods. Most notably, and I trust generally understood in considerable detail by most practitioners, are the duties to report known or reasonably suspected (or a similar standard) child abuse, elder abuse and dependent adult abuse. Violation of any of these duties may constitute a crime and can result in civil and administrative liability. Compliance with any of these duties generally results in some amount of immunity from liability. Whether or not such reporting duties must (or should) be disclosed to patients at the outset of treatment, and with what degree of granularity, is dependent upon state law, professional ethics, and the practitioner’s professional judgment and philosophies/viewpoints.

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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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April 3, 2018

Mental Illness, Guns and Dangerous Patients

Avoiding Liability Bulletin – April 2018

It seems that every time there is a mass shooting event, followed by an outcry for gun control legislation (and school safety), there is also a discussion about the “mentally ill” and whether limitations should be placed upon their ability to legally own or possess guns. Media discussions are filled with references to the “mentally ill” without clearly defining what is meant by the term “mentally ill.” With respect to reports to the FBI’s National Instant Criminal Background Check System (NICS), those who have been adjudicated a danger to self or others in an involuntary commitment proceeding must be reported by certain entities or persons. Those “mentally ill” persons are therefore not entitled to buy or possess guns. But after all of the media discussion following the recent Florida school shooting, what would be the result of a poll question that asked the public “should a mentally disordered patient be allowed to possess a gun?”

Mental health practitioners understand that people who are being treated for mental and emotional problems span a wide spectrum – the overwhelming majority posing no threat or likelihood of committing acts of violence toward self or others. For the many practitioners who deal with patients who seek reimbursement from insurance companies and managed care plans of various types, the diagnosis and treatment of a mental disorder is required in order to be entitled to reimbursement by the insurer or other payer – whether private or governmental. Many practitioners of various licensures believe that the pressure to specify diagnoses for patients early in the therapeutic process has transformed their practices (and professions) unnecessarily toward the sickness, illness, or medical model. Prior to the reality of widespread reimbursement for psychotherapists, there was no need to quickly identify and specify a DSM diagnosis, if at all – depending upon the treatment philosophy (e.g., family systems therapy, narrative therapy, etc.) of the particular practitioner.

This reality sometimes raises the question of whether practitioners in private practice should explore with patients the pros and cons of the patient paying “out of pocket” rather than relying on the health insurance company’s reimbursement. Such a discussion would necessarily include the topics of privacy, confidentiality, the amount of coverage, and the nuanced explanation that in order for reimbursement to occur, it will be necessary to designate a particular mental disorder that is being treated. Such a discussion must be done with care, since a careless job might lead a patient to later allege, among other things, that the practitioner talked the patient out of utilizing his/her coverage for the practitioner’s convenience – to the economic detriment of the patient. Some practitioners have shaped their practices to avoid patients who depend upon insurance reimbursement or other payers, thus eliminating oversight and review and the need to quickly assign a mental disorder to the patient. Such selectivity of clientele is not always possible or desired.

The often thorny issue for psychotherapists of all licensures is how to deal with dangerous patient situations once the practitioner has determined that a patient poses a serious danger of violence against a readily identifiable other (or a determination of dangerousness based upon a similar standard). Once that determination is made, the practitioner must act in a manner that is consistent with state law (statutory and case law). I have previously written about the dangerous patient issue and the so-called “duty to warn” in California, first established by the “Tarasoff decision” by the California Supreme Court. The actual duty enunciated in the landmark 1976 decision was that the therapist must use reasonable care to protect the intended victim against the serious danger of violence – it did not create an actual “duty to warn.” As the Court states, the discharge of the duty may call for the therapist to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

The content of a warning made by a mental health practitioner to an intended victim can become an issue. Generally, I have advised that the warning be clear and concise – and that the practitioner reveal only that amount of information necessary to accomplish the purpose. My concern was to protect confidentiality in accordance with the sentiments expressed by the Court in the Tarasoff decision. In a 1991 California appellate court decision involving the Menendez brothers, accused of killing their parents, that court ruled that the content of a “Tarasoff warning” may include any of the patient’s statements to the therapist that the therapist reasonably believes are necessary to disclose to the victim in order to convince the victim of the extent and seriousness of the danger. In that case, one of the brothers admitted to the murder during a therapy session, and that information was later disclosed by the therapist when making the warning.

In some cases, the patient may inform the therapist that a particular person is threatening violence against the patient or a third party. Therapists sometimes think that the usual duty or right to take certain actions applies to such situations. Since the patient is not threatening harm to others, it is the patient who must decide on the appropriate course of action for the patient to take. The therapist may discuss various options that the patient could pursue, but the dangerous patient exception to confidentiality relates to situations where the patient is the one who presents the danger to others (or self).

What if a practitioner asks whether he/she should return a gun that the practitioner had taken from the patient at the patient’s request? Whether the practitioner should take the weapon in the first place is a question that can be debated, although in most circumstances, such action is either unnecessary or unwise. I think of the scenario, however, where the failure to take and temporarily hold a gun that was surrendered by the dangerous patient could result in liability exposure if the patient leaves and shortly thereafter commits an act of violence with the gun. Should the facts ultimately emerge as to the refusal of the therapist or counselor to accept and hold/store the gun, the practitioner could be vulnerable – especially if judged after the fact of a mass shooting and in the midst of intense publicity and scrutiny.

If the therapist decides to return the gun when the patient makes such a request, it can be inferred that the therapist has made the determination that the patient is no longer a serious danger of violence. The risks involved with such a determination should be apparent. I would advise a therapist in such a situation (hopefully rare) to not act rashly and to refer the patient to another practitioner (preferably a psychiatrist) for an evaluation of mental status and dangerousness. Finding a practitioner willing to make such a determination, in light of recent events, might be difficult. While the gun cannot be held by the therapist indefinitely, perhaps it can be kept by the therapist until a corroborating professional opinion is obtained and treatment is terminated. It can be argued (in appropriate cases) that since the patient voluntarily sought therapy, readily communicated the threatened behavior to the therapist, voluntarily surrendered the gun, and was thereafter in an improved mental state (no longer a danger), return of the gun was both reasonable and warranted.

On a lighter note, I have previously written about the call I once received from a therapist who told me that the patient who was scheduled for a session later that week had just called and told the therapist that when he comes to treatment in a few days he is going to kill (shoot) the therapist. The therapist asked, “What is my duty?” My response was “cancel your appointment.” Further discussion revolved around whether the therapist should notify the police of the threat and the identity and whereabouts of the patient. Of course, termination of treatment, and the manner in which the termination could be implemented, was also a topic for discussion.

About the Author

Richard Leslie

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May 24, 2016

Law and Ethics: Questions to Ponder

Avoiding Liability Bulletin – April 2016

Suppose that a therapist or counselor is treating a patient who is a staunch Second Amendment advocate, who during the course of treatment tells the clinician about his lawful possession of, and interest in, firearms. Suppose further that the practitioner is a strong gun control advocate. At some point in the treatment, matters get real serious. The patient is both depressed and angry about what is happening on his job and has on two occasions hinted at possible violence. There comes a time when the practitioner believes that the patient presents a serious and imminent danger of violence against the patient’s supervisor at work and other employees. No specific threat has been articulated by the patient.

Suppose further that the practitioner is a “covered entity” (under HIPAA) and is aware of the recent change to HIPAA regulations allowing, for example, the reporting (by a court or public institution) to the FBI’s National Instant Criminal Background Check System (NICS) of those who have been involuntarily committed and thereafter adjudicated an imminent and serious danger of violence to others. The practitioner is thinking about informing the patient that if he voluntarily commits himself for evaluation and treatment, no report to NICS would likely be made, thus preserving the patient’s right to own, possess, or purchase guns. Because of his own beliefs regarding gun control, the practitioner decides not to inform the patient of this distinction (nuance) in the federal regulations regarding voluntary vs. involuntary commitments. An involuntary commitment is initiated, and when there is an adjudication that results in a period of treatment, the patient’s name is sent to NICS and his right to own or possess guns is thereby compromised. This suits the practitioner’s belief system quite well.

Are the practitioner’s actions supportable? Are they lawful? Are they ethical?

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Richard Leslie

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Dangerous Patients and the “Tarasoff Duty”

Avoiding Liability Bulletin – April 2005

… Wow – what a problem exists in California! Therapists are in somewhat of a precarious situation for a number of reasons related to a) the famed “Tarasoff” decision and subsequent court decisions interpreting the duty, and b) the statute that sought to give immunity to therapists under specified circumstances related to threatened harm by the patient against reasonably identifiable victims.

It seems as though some are now questioning whether or not a therapist may safely comply with his or her duty when the patient threatens imminent harm against another by taking reasonable steps to protect the intended victim, such as hospitalizing the patient. There are some who maintain that under specified circumstances, the therapist, in essence, does not have the option to hospitalize but must make a reasonable attempt to warn the intended victim and to notify a law enforcement agency. Failure to do both, they maintain, makes the therapist liable, regardless of how reasonable the hospitalization may have been. This, in my view, is quite troublesome.

Such a rigid approach is not in the best interests of the patient (continued treatment, privacy), nor is it consistent with the principles enunciated in the Tarasoff decision, which called for action that preserved confidentiality to the extent consistent with protection of the victim from the threatened harm. Involuntary hospitalization, for example, is usually such an action.

As this confusing situation now gets debated in the California Legislature, it’s anyone’s guess as to how the confusion will be resolved. Opinions will likely differ on how it should be resolved. The Tarasoff decision, and the duty created thereby, is well known and well respected nationwide, even though each state may treat the subject matter a little bit differently. If there is a duty (as opposed to a right), what is the duty in your state and when, precisely, is it triggered? If you cannot readily answer that question, you should be concerned. This can be a tricky area of the law. Best to get the answer now, when things are calm!

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About the Author

Richard Leslie

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Dangerous Patients and the Therapist’s Duty

Avoiding Liability Bulletin – June 2006

… In a previous issue of the Avoiding Liability Bulletin, under the heading of Dangerous Patients and the “Tarasoff Duty”(April 2005, Volume 2), I described a problem in California and asked about the law in your state regarding the duty, if any, on the part of a therapist or counselor to protect a third party from the threatened physical violence of the patient. The law varies in fine nuance from state to state, not only with respect to the issue of the specific duty and how it may be discharged, but with respect to the issue of when the duty is “triggered.”

For example, one trigger (consistent with the famed California Supreme Court’s 1976 decision in Tarasoff v. Regents University of California) is when the therapist determines that the patient presents a serious danger (e.g., imminent) of physical violence to a readily identifiable other. Another type of trigger is when the patient communicates to the therapist an explicit threat to kill or inflict serious bodily injury against a reasonably identified victim.

As you might discern, the differences between these two approaches to the “trigger” of the duty are significant. In the first example, the therapist’s determination may apparently be made not only as the result of a threat made by the patient, but by a variety of factors, such as communications and information received from others, a review of prior treatment records, the patient’s nonverbal communications, and the patient’s communications (verbal and non-verbal) that do not amount to “an explicit threat.”

In the second example, the duty is arguably triggered only if there is an explicit threat communicated by the patient to the therapist. Thus, in some cases a therapist might determine that the patient is an imminent danger of serious physical violence to a readily identifiable other, but might apparently owe no “duty to warn” or “duty to protect” the victim because there was no communicated and explicit threat. Some state statutes (or case law) combine these kinds of approaches to the “trigger,” while others may contain different and somewhat ambiguous language. One must read the state laws (and case law) very carefully in order to discern the exact parameters for the “trigger” of the duty.

If one doesn’t understand when the duty is triggered, he/she may be breaking confidentiality if certain disclosures are made without the patient’s written authorization. Of course, it is quite possible that the state law will allow or permit disclosures to be made in situations that do not require the therapist or counselor to warn or notify anyone (e.g., situations that do not involve explicit threats of imminent physical violence).

Once one understands when the duty is triggered, it is then important to understand what the actual duty is. For example, is it a duty to warn, a duty to protect, or a duty to warn and protect? It is also important to understand how the duty is to be discharged in order to obtain (if possible) immunity from liability, and whether the therapist can take other reasonable action that may not result in liability (even though the action taken does not entitle the therapist to immunity)

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Richard Leslie

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Immunity From Liability

Avoiding Liability Bulletin – October 2006

In the April 2005 (Volume 2) issue of the Avoiding Liability Bulletin I wrote about a huge problem in the state of California with respect to the issue of the dangerous patient and the duty of a therapist. In large measure, the problem has likely been solved because of the passage of legislation that I worked on in conjunction with the sponsor of the bill, the California Association of Marriage and Family Therapists. The legislation affects California psychotherapists only, and its effect is to establish a “safe harbor” for psychotherapists who take certain actions when their patients communicate threats of imminent and serious physical violence against readily identifiable others.

Prior to passage of this bill, some within the California judiciary (and others) interpreted the existing section of law as the creation of a new (post-Tarasoff decision) duty, which if not followed in every case where a patient communicates to his or therapist a serious threat of physical violence against a reasonably identifiable victim, will result in automatic liability for the therapist. More specifically, if the therapist did not make reasonable efforts to communicate the threat to the intended victim and to a law enforcement agency, liability would automatically attach. Thus, therapists who hospitalized a patient – no matter how reasonable the action and no matter what transpires at the hospital and upon discharge – would incur automatic liability if the patient later carried out the threat. This situation has hopefully been rectified (effective January 1, 2007) by the newly passed legislation, which makes clear that the two requirements specified above are for the purpose of gaining immunity from liability.

If a therapist takes other action, like hospitalizing a patient, he or she should not be automatically liable, but rather, should be liable only if it is determined that such action was negligent. Although there would not be immunity, a judge or jury would have to determine if the therapist’s actions were reasonable under the circumstances.

Does your state provide immunity from liability if specific actions are taken? And, if those specific actions are not taken, what is the possible consequence? Check now, before being faced with a dangerous patient situation requiring quick action. Before any action is taken, however, one must know when the duty or the right to warn or break confidentiality is “triggered.” As with other areas of law covered in this Bulletin, state laws vary – so be careful!

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About the Author

Richard Leslie

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