AVOIDING LIABILITY BLOG

Confidentiality/Privilege – Death of the Patient

November 2008

… I previously wrote about this topic (July 2005, Volume 1 of the Avoiding Liability Bulletin – see Archives), in a limited way, where I addressed the issue of the county coroner or medical examiner seeking information from a therapist or counselor in order to determine whether the death of the patient was the result of suicide or murder. When a patient dies, whether as a result of ill health, suicide, murder, or accident, the therapist or counselor will likely come face-to face with the issues of confidentiality and privilege. These issues can arise in any number of ways.

As indicated above, perhaps the county coroner or medical examiner appears at the practitioner’s door seeking access to a deceased client’s records. Perhaps the spouse of a deceased client calls the practitioner and wants to come in and talk about the state of the deceased’s mental or emotional condition prior to death, or about other private information. Perhaps there will be a will contest or other kind of lawsuit where the therapist or counselor will be subpoenaed to testify or to produce records. Maybe the patient was severely injured in an auto accident and subsequently died from the injuries suffered in the crash. Perhaps the spouse is now pursuing a wrongful death claim on behalf of the deceased or the estate. Whatever the circumstance, the therapist or counselor must understand some basic principles in order to make the right decisions.

One principle that is helpful to remember is that generally, confidentiality survives the death of the patient. In other words, the deceased patient continues to be entitled to confidentiality, and the practitioner is under a continuing duty to protect the confidentiality of the records and information pertaining to the deceased patient. Similarly, the psychotherapist-patient privilege, which “belongs” to the patient, survives the death of the patient. Thus, the practitioner’s first instinct after the patient dies and upon receiving a request for information about the deceased patient should be to resist disclosure. Therapists and counselors seldom get in serious trouble for first protecting confidentiality and privilege, even if it is later determined that disclosure is mandated or permitted.

With respect to the county coroner or medical examiner, and as indicated in the July 2005 Avoiding Liability Bulletin, disclosure to the county coroner or medical examiner (or some other designated official) may be required or permitted by state law for a specified purpose – the most common of which would be to aid in the determination of whether the death of the patient was the result of suicide or murder. Reference to state law is necessary in order to determine the extent of the access, and the time frame and manner of the required or permitted disclosure to the investigating government official.

With respect to the situation in which a spouse of a deceased client wishes to meet with the practitioner, care must be taken – and the therapist or counselor may be required to walk a very fine line. On the one hand, confidentiality must be protected. On the other hand, the concerned spouse should not necessarily be ignored. Practitioners often want to have some interaction with the surviving spouse, both out of a human concern and out of a desire to not do anything at such a critical time that will anger the surviving spouse. Depending upon the circumstances, meeting with the surviving spouse can be useful in bringing closure and showing compassion. This can sometimes be accomplished without breaking the confidentiality of the deceased client. Surviving spouses will often understand and respect the need for the therapist to continue to preserve confidentiality.

Meeting with the surviving spouse may be more difficult in situations where the patient or client has committed suicide. In such situations, the surviving spouse may be seeking information that will ultimately be used against the therapist or counselor in a lawsuit or claim for damages that seeks to place blame on the practitioner for failure to recognize the risk to the patient, or for failure to take appropriate action to prevent, or to try to prevent, the suicide. Often, the therapist or counselor will have to balance the risks and benefits of not meeting with or giving any information to the surviving spouse, or meeting with the surviving spouse and sharing a limited amount of information. In such circumstances, it is useful to remember that the beneficiary or personal representative of the deceased patient, depending upon state law, is generally the one who may sign authorizations and obtain access to records on behalf of a deceased patient. In such situations, legal consultation may be both wise and necessary.

With respect to will contests or other lawsuits, the issue of psychotherapist-patient privilege will likely be involved. Depending upon the kind of case, the privilege may be waived by someone acting on behalf of the deceased patient (such as a guardian appointed for the purposes of pursuing the lawsuit on behalf of the deceased – to wit, a guardian ad litem), or the practitioner will be in a more ambiguous position and will have to assert the privilege and await direction from the holder of the privilege or a ruling by the court. Sometimes, identifying the holder of the privilege (e.g., the “personal representative” of the patient) is not easy. Perhaps there will be two holders of the privilege, each with a different position regarding waiver. Legal consultation may be both wise and necessary in such circumstances.

It is important to remember that if a practitioner is to err when faced with these kinds of dilemmas, it is usually better to err on the side of protecting confidentiality or privilege, at least at the start! One can change their position when confronted with the governing law.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"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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