Avoiding Liability Bulletin – April 2016
Shortly after writing the March 2016 Bulletin, where I wrote about “driving under the influence” convictions leading to disciplinary action by a licensing authority, I learned of a study of alcohol use by lawyers and alcohol use, which has been described as rendering “alarming results.” The study was conducted by the Hazelden Betty Ford Foundation and the American Bar Association, and it concluded that as many as one out of three lawyers is a problem drinker and one out of four has some form of depression or anxiety. The study’s conclusions raise concerns for public protection, that is, the concern about lawyers with alcohol problems representing clients.
I don’t know how a similar study of therapists, counselors and mental health practitioners of all licensures would measure up, but that aside, there appears to be a fair number of potential clients for practitioners who can market effectively to those particular drinkers described in the study! On a more sober note, it is not surprising that licensing boards for all professions take seriously criminal convictions involving drinking and driving. While such a conviction does not necessarily mean that enforcement action will be justified or ultimately taken against one’s license, the licensing authority, when notified of the conviction, will certainly inquire.
LAW AND ETHICS – Questions to Ponder
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?
CONFIDENTIALITY – Death of Patient
While thankfully not an everyday occurrence, it is not a rarity that a patient unexpectedly dies during the course of treatment or shortly after termination. Death may result from natural causes, from a long standing illness, from an auto or other accident, from a criminal act, or from an unexpected suicide. The sadness of such situations is obvious, and the loss will obviously affect the therapist’s psyche and provoke a variety of thoughts. Very quickly, however, the therapist’s thoughts may turn to the issue of confidentiality.
One or more family members, or a spouse or partner may be aware of the fact that the deceased was in treatment with the practitioner and may make inquiry. If the death is of a suspicious nature, the police or other investigators will likely inquire. The county coroner or medical examiner may contact the mental health practitioner in an effort to determine the cause of death. Or, the practitioner may fear that someone close to the patient will assert that the practitioner failed to recognize the danger that the patient was in immediately prior to the time of a suicide. While no one rule will govern every situation that can occur, there is one principle that will help in most situations – that is, the principle, recognized in most state laws, that the duty of confidentiality survives the death of the patient.
As I have written before, the first instinct that therapists and counselors should have when someone is seeking information or records concerning a patient, former patient, or deceased patient, is to resist. The instinct to resist will help to prevent a technical, inadvertent, or negligent release of confidential information – as when a therapist may be trying to console a grieving spouse or family member, or to convince someone that appropriate treatment was rendered. Resistance can change to compliance when there is a proper authorization presented, signed by someone with authority to sign, or when the practitioner knows or learns that compliance is required or permitted (without a signed authorization) under applicable law.