I thought I might have a bit of fun going back to my ABCs and that you might find some of these brief items helpful. Perhaps you can think of others. The thought here is to remind you of some of the basics that may help you avoid or minimize liability. This is not an exhaustive list. For any of the items listed here, further research can be done at CPH and Associates’ website, where the Avoiding Liability Bulletin can be found under “Legal Resources” and where the “Bulletin Archive” contains my previous articles categorized by topic.

Advertise truthfully and without any misleading information. Sounds easy and basic, but many practitioners run afoul of this basic rule. Don’t hold yourself out to be an expert if you are not willing to be held to a higher standard.

Break confidentiality (without the written authorization of your patient) only when required or permitted by law  – such as child abuse or elder abuse reporting, communicating with a coroner or medical examiner investigating the death of your patient, or when compelled by a court order. It is important to know when this may be done without your patient’s express permission. It is also important that the patient is aware of some or all exceptions to confidentiality. How much to disclose is a matter of judgment unless otherwise dictated by law.

Child abuse reporting – remember that there is generally more liability for not reporting than for reporting child abuse. Additionally, the report(s) must be made within a specific time frame. Failure to report is a crime in most if not all states. 

Document records well. Sometimes your best defense is contained in your records. If you don’t document it, adverse parties may argue that it did not occur.

Expertise – don’t call yourself an expert if you cannot support it and are not prepared to be held to the standards of an expert. Do a self-assessment of your education, training and experience before claiming expertise in a particular area.

Fees – be clear with fees and do not allow balances to accumulate. Think about forgiving the debt of a patient or suing him/her in small claims court before turning the matter over to collections. Fee disputes can lead to more serious allegations from patient or clients.

Guarantee of a cure – never guarantee a cure – either directly or indirectly. Sometimes testimonials can indirectly imply that you are guaranteeing a cure. Let patients know the limits of psychotherapeutic intervention.

HIPAA – know for certain whether or not you are a “covered entity.” Compliance with HIPAA regulations is not necessary, and sometimes problematic, if you are not a covered entity.

Informed consent – what does this term mean in your state? For some, it simply means that certain specified disclosures must be made to the patient prior to the commencement of therapy or counseling. To others, it means that the patient must be informed, among other things, of the potential risks and benefits of services that are considered risky, experimental, or for which there exists little or no evidence of the efficacy of such treatment.

Joint legal custody – when treating a child, it is important to ascertain which parent has legal custody (as opposed to physical custody). In many states, either parent can consent to the treatment of the child where there exists a court order of joint legal custody. Some court orders may specify additional conditions and some state laws may require notification of the other parent where only one gives initial consent to treat. Be careful in this area of practice, since tensions run high in these kinds of cases. Know the law in your state with exactitude!

Kids – who is the holder of the privilege when you treat a minor of the age of six or sixteen? State laws vary, but in many states, the child is the holder of the privilege unless there is a court appointed guardian or conservator.

Liability – remember, there is liability in civil lawsuits for negligence, and liability in criminal cases – like insurance fraud, failure to report child abuse, or sex with patient (in many states). There is also liability with respect to the licensing board for violations of the licensing law (e.g., unprofessional conduct) or other laws.

Malpractice insurance – make sure you never make the mistake of letting it lapse. You may not receive notification of a renewal for a variety of reasons. The responsibility is yours. Also, remember, you are required to promptly notify the insurer, in writing, when you are aware that you may have done something, or not done something, or something may have occurred in your rendering of professional services that may lead to a claim.

Negligence – your failure to act (omission) or your acts that fall below the standard of care – generally defined as that level of care that would be rendered by the reasonably prudent practitioner of like licensure under similar circumstances. A single negligent act or omission is not typically cause for disciplinary action in most states. Gross negligence, however, is typically considered to be unprofessional conduct, which will be acted upon by licensing boards. Gross negligence may be defined as an extreme departure from the ordinary standard of care.

Oral permission to release confidential information is generally not valid. State law usually requires a written and signed authorization. State law may also specify the particular elements to be contained in a valid authorization.

Privilege – the privilege belongs to the patient. You need to protect it until the patient and the patient’s attorney direct you otherwise. The laws in each state vary with respect to how the privilege is to be claimed, asserted, or protected. Remember, there is a difference between privilege and confidentiality. If you cannot articulate what the difference is, do some research in the Avoiding Liability Bulletin Archives.

Quasi- Judicial Immunity – In many states, the law provides immunity from liability for those who testify as expert witnesses for the court – such as child custody evaluators, conciliators, or mediators. Impartiality and neutrality of these expert witnesses are expected by the Court.

Renew your license in a timely manner. Renew your malpractice insurance in a timely manner. If you fail at either, you can have huge problems. You could be practicing without a license for a period of time, or you could be without liability insurance just at the time that a claim arises. Timing is critical. Do not rely on others to notify you. They may make a mistake – or the mail could get lost. Be in control of your career!

Suicide – remember, the death of your patient does not generally mean that your duty of confidentiality ends. Additionally, the psychotherapist-patient privilege is usually applicable, despite the death of the patient. The suicide of a patient may result in contact with the therapist or counselor by family members, the coroner or medical examiner, or others. Be prepared!

Termination of treatment – termination by the therapist or counselor should usually be a process rather than something that is handled in one session or solely by sending a letter, or worse, by leaving a phone message. A bad termination may constitute abandonment of the patient. The issue of termination can be addressed in a helpful way in the practitioner’s disclosure form that is given to the patient at the outset of treatment.

Uninsured or underinsured - Make sure you have high limits of coverage, especially if you live in a state like California or New York, as opposed to Idaho or Iowa (kind of kidding!). Premiums are quite reasonable compared to other health professions, including psychology. DO NOT ALLOW YOUR POLICY TO LAPSE.

Violence threatened by patients – it is important to know what the rights and duties are of the therapist or counselor with respect to making warnings to the intended victim and/or the police. Many practitioners have misunderstood the famed Tarasoff decision of the California Supreme Court - which did not, contrary to popular belief, create a “duty to warn.” Also, it is important to distinguish between what may be done to satisfy the applicable duty and what must be done in order to be “immune from liability.” This area of the law can be tricky, and state law varies in fine nuance.

When to say “no” - One of the best decisions a practitioner can make is to say “no” to a prospective patient that may be presenting with a problem outside the ken of the practitioner, or simply saying “no” to a prospective patient who makes the practitioner uncomfortable.

Xperimental – Okay, I cheated a bit. If you perform treatment that is innovative or experimental in nature, or for which there is little or no clinical evidence of the propriety of the treatment approach, be sure to obtain a signed informed consent from the patient – where you disclose, among other things, that the treatment is innovative or experimental in nature (or that there is little or no clinical evidence – or whatever the reality is), and the potential risks and benefits of treatment. I’m sure your insurer would prefer you perform more evidence-based services!

You – sometimes it’s all about you -- what is in your best interests, as opposed to the patient’s best interests – such as when you are sued by the patient or when a complaint is filed with the licensing board.

Zealousness – Be zealous about your ethics and about continuing to learn and to grow as a professional. And please, zealously read the AVOIDING LIABILITY BULLETIN!

I return to my ABCs (see the July 2010 issue of the Avoiding Liability Bulletin for the prior one) and hope you find a few of these items/reminders helpful. Pardon my occasional attempts at humor! Hopefully, these brief items will remind you of some of the basics and will spur further research on your part.

Avoid using testimonials – or be very careful - they may send the wrong message. Although testimonials are generally not prohibited by law or ethical standards, they do present some problems and do require caution. For example, if patients are solicited to do a testimonial, an ethical violation may occur – the patient may feel exploited or that undo pressure was used. The client may be reluctant to say “no” to his or her therapist or counselor. What would your answer be if a patient asked whether the testimonials he read are any indication of the likely outcome of his therapy or counseling?

Break confidentiality without the patient’s written authorization only when required or permitted by law. Generally, this will occur in cases involving the mandated or permissive reporting of child abuse or neglect, elder abuse, dependent adult abuse, or in situations involving a patient threatening (or presenting a threat of) imminent and serious violence to self or to others. Does the law in your state allow therapists or counselors to communicate with other licensed health care providers without the signed authorization of the client? It should, as does HIPAA and California law – provided that the communication or the release of information is for the purposes of diagnosis or treatment of the patient.

Child abuse reporting – one of the tricky areas of reporting involves an adult (18 or over) who tells her therapist that she was abused when she was a child. Related to that scenario is the case where the seventeen year old tells her therapist about abuse that occurred far in the past. In the first scenario, this would generally not be reportable. The adult can report it herself. In the second scenario, this would generally be reportable, since the patient is still a child.

“Deposition coverage” for a practitioner’s reasonable legal expenses under the CPH and Associates’ professional liability program is conditioned upon the compulsory appearance of the insured at the deposition. So, when the patient’s attorney asks you to voluntarily appear at the deposition, you might want to insist upon being served with a subpoena! Check your policy for conditions and limitations.

E –Therapy becomes problematic when you practice across state lines. It is unlawful to practice in a state where you do not hold a license, and arguably, it is where the patient resides that determines where the services are being performed. Calling the therapy something else, such as coaching, may not and should not help – and may be proven to be a misrepresentation.  

Forget key dates at your peril! When does your malpractice policy renew? When does your license expire? When must you renew? When do your continuing education requirements have to be fulfilled by? Have you promptly advised your professional association, the licensing board, and your malpractice insurer of your change of address?

Gifts to and from patients can be problematic. Although not unlawful or unethical, the giving or receiving of gifts may be misinterpreted by the patient. Of course, everything depends upon the facts and circumstances of each case. I remember advising one therapist that if he gets a gift for the patient’s wedding, the patient may accuse him of being a tightwad. “I pay you $150 per hour, two times a week for the past year, and this is what I get?”

Hypnosis to help a patient who was the victim of a crime recall or remember the details of the crime may jeopardize the patient’s testimony (about things remembered prior to the hypnosis) if the hypnosis is not done in accordance with certain conditions. Do you know whether the law in your state addresses this issue? In California, the law is found in the Evidence Code (Section 795 for those who are interested!).

Informed consent is often misunderstood. It is both a legal and an ethical principle and may mean different things in different states. I like to ask, what are the risks of ordinary therapy or counseling? If there are any, must they be disclosed in writing prior to the performance of services? Does a state statute or regulation articulate these risks? Taken to the extreme, does a therapist or counselor really need to tell a patient that therapy might help him discover who he really is, that he may not like the discovery, that he may get depressed, that it may lead to a divorce or separation, and that he may contemplate suicide? I think not!

Just say “no” to anything to do with sexual contact with a patient – no matter what your state of being and state of mind may be at any given moment – and no matter how authentic your feelings may be! You can have sex with everyone else in the world, except minors!

Keep going to workshops and seminars in excess of what is required by state law or regulation if not unduly burdensome, because it may come in handy when you are being cross-examined. For example, “So Dr. Green, you only complied with the minimum continuing education required by the state, and did not do one hour more than the minimum requirement, is that correct?”

Liability comes in several ways – criminally, civilly, and administratively. You can insure yourself, to a limited degree, for two of the three!

Missed sessions should not be billed to insurance companies as if an hour of psychotherapy was performed. This is one of the more common forms of insurance fraud.

Nolo Contendere – this plea in a criminal case, which is a “no contest” plea, is generally considered to be the same as a guilty plea for criminal purposes, but cannot be used in a civil case to prove that the violation occurred or to show liability. Under the law of most states, a plea of no contest in a criminal case (e.g., assault and battery, petty theft, unlawful trespass, driving under the influence) will have to be disclosed to the licensing board and will allow the licensing board to take disciplinary action. Beware – should you ever be arrested!

Oral copulation between liked-aged minors is reportable (mandated) as child abuse in California, and perhaps in other states as well. Sexual intercourse between like-aged minors is not reportable as child abuse in California. What is the law in your state with regard to these particular matters?

Privilege and confidentiality are different things. Can you clearly explain the difference to a client? In brief, privilege involves the right to withhold testimony in a legal proceeding, while confidentiality is a restriction on the volunteering of information by the practitioner (outside of the courtroom setting).

Quash – is defined as vacate, to make void, to abate or annul. So don’t talk to a lawyer about “squashing” a subpoena. You might want it quashed, however!

Red Flags Rule – What do you know about this federal rule (Federal Trade Commission) regarding identity theft? Are you in compliance? Do you need to be in compliance? What position has your professional association taken with respect to the need to be in compliance?

Suicidal patients – Is there a duty to break confidentiality and alert or warn others or merely the right (discretion) to break confidentiality if deemed necessary to prevent a suicide? Is there a duty to hospitalize? Perhaps there is no statutory duty to do so in every case, but remember, there is a general duty to provide competent care and to act as a reasonably prudent practitioner of like licensure would act under the same or similar circumstances.

“The protective privilege ends where the public peril begins.” This quote from a well-known California Supreme Court decision involving a patient who threatened imminent and serious physical harm to another, in my view, is an artful and literary way of defining the time when a therapist in California must act to protect the intended victim from the threatened danger. When, if at all, is the time when a therapist or counselor must act in your state? (I realize that use of the word “the” for “t” can be seen as an easy way out, but see what I had to do for “x”!)

Unprofessional conduct – each state’s licensing laws for the various mental health professions contain a section of law that defines “unprofessional conduct” (or a similar term). Practitioners should be aware of all of the reasons why a license may be revoked or suspended by the State. One such reason usually involves the conviction of a crime (such as driving under the influence or petty theft), which could lead to action by the regulatory board. You may think that a particular crime is unrelated to your license, but the State may think and argue otherwise. See my comments under “Nolo Contendere” above.

Violence by the patient against the therapist or counselor is not privileged or confidential, and the practitioner may protect himself/herself by making a police report (hopefully, this occurs rarely) or otherwise. I was once asked by an agitated caller (a relative of a patient) if it was ethical or lawful for a therapist to slap a patient in the face. My response was “it depends.” The caller was aghast. But as you should know by now, it depends upon the particular facts and circumstances involved!

When in doubt (clinically or legally), consult and document your records. While not a panacea, it can make you look good (prudent) when your actions are being picked apart by the opposing attorney at trial or at a deposition.

Xyster – If the patient’s surgeon leaves a xyster in the patient following surgery, and if the she sues the surgeon for physical harm caused by the surgeon’s negligence, the psychotherapist –patient privilege will likely protect the treating therapist or counselor’s records from discovery and allow the patient to prevent the testimony of the therapist or counselor, which might otherwise have been damaging or embarrassing. By the way, the word is xyster – not shyster!

Youth suicide – what do you know about youth suicide? With bullying being so prominent in the news, it is important that practitioners get training and/or education in youth suicide prevention and treatment. The resources online are plentiful. Many if not most states are involved with this issue. Which racial/ethnic group of youth are statistically the most likely to commit or attempt suicide in your state?    

Zealous witness – defined in Black’s Law Dictionary as “an untechnical term denoting a witness, on the trial of a cause, who manifests a partiality for the side calling him, and an eager readiness to tell anything which he thinks may be of advantage to that side.” Get the point? You do not want to be thought of or seen as a zealous witness. There may be times when you cannot be of help to your patient and your patient’s attorney because of your legal and ethical duty to testify truthfully.