Avoiding Liability Bulletin – October 2013

… I was reading something published by a national organization representing a mental health profession, and in a chapter dealing with client suicide a statement is made to the effect that these mental health practitioners “are not expected to predict suicide” and “are not expected to prevent suicide.” The one page of content dealt primarily with what a therapist should do upon learning that a client has committed suicide, and it basically recommended that the practitioner promptly call his or her professional liability insurance carrier. The above quotes not only caught my eye, but I was a bit uncomfortable with the message possibly sent (inadvertently). While practitioners cannot be expected to reliably “predict” or foretell suicide, competent practitioners are expected to be knowledgeable about the indicators of suicidal behavior.

I think there would be general agreement with the statement that “health care practitioners play a critical role in the recognition, prevention, and treatment of suicidal behavior.” Assuming a proper and competent assessment and/or diagnosis, there may be a reasonable expectation that mental health practitioners will be able to “predict” or foresee a suicide – not necessarily with certainty, but perhaps with a strong clinical suspicion. While it is generally recognized that suicide may occur without any prior warning to the reasonably prudent practitioner, it is also recognized that on some occasions a therapist may not properly or competently assess or diagnose the patient’s likely danger to self or to others.

With respect to preventing suicide, I would think that there is a reasonable expectation that once a risk of suicide is identified as an issue to be addressed, therapists are “expected” to prevent suicide by the implementation of appropriate interventions. While no one can guarantee success, even with competent care and sound clinical judgment, some patients may not receive competent care. If negligence is proven, there could be liability for a failure to take reasonable steps to prevent the eventual suicide. Of course, the particular facts involved will determine whether or not a suicide should have been, or could have been, reasonably “predicted” (foreseen) and whether or not the level and kind of treatment was appropriate.

In such cases, the therapist’s records become very important, if not critical. Expert witness testimony regarding suicide – including its “prediction” and “prevention” – will also be of great importance.

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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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Avoiding Liability Bulletin – December 2008

… Occasionally I am asked to opine on the subject of a mental health practitioner’s participation in what can be called “supportive therapy” for someone who has decided to take his or her life. The reasons for the decision to end one’s life can vary widely, but the result, at least for me, is always the same. One scenario that I have been asked about more than once involves a client suffering from an eating disorder resulting in weight loss and malnutrition to the point of dangerousness to life. Attempted suicide is a crime in many states. Aiding or abetting a patient or client to commit suicide, or simply providing supportive counseling or therapy, might likewise, depending upon the circumstances, constitute a crime.

In most states, therapists and counselors are permitted (sometimes required) to break confidentiality when the patient is a danger to self as the result of a mental or emotional condition. If the disclosure is required, the practitioner is expected to comply with the law. If the disclosure is permitted, the practitioner must make a very important judgment. In my view, that judgment should favor those disclosures calculated to prevent the threatened or imminent suicide or serious danger to self.

I would be uncomfortable taking the position (e.g., arguing in court) that since the practitioner was not mandated to warn, notify or alert anyone, he or she was therefore without blame when nothing was done to try to prevent the intended self-harm, or when supportive counseling was provided to assist the patient with his or her plans. I would much rather be defending the practitioner who made reasonable efforts to prevent the self-harm – including, if necessary, breaking the patient’s confidentiality. When states pass laws that allow people to take their own lives under specified circumstances, then mental health practitioners can perhaps more safely provide supportive counseling or therapy that is consistent with the terms and conditions of such a law. Until then, practitioners must be very cautious when confronted with this kind of a situation.

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About the Author

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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