Keeping Your License – Brief Follow-up

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.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. 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. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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