AVOIDING LIABILITY BLOG

DISCLOSURE TO PATIENTS – “NO COURT FOR ME” (?)

June 2015

Every so often I am told by a mental health professional that somewhere in their disclosure document, their written policy statement, their informed consent form, or in a contract or agreement to be signed by the patient, there is a provision stating that the practitioner will not testify or otherwise get involved with attorneys during civil litigation or other legal or administrative proceedings. Sometimes the written document may contain a clause expressing agreement by the patient not to subpoena or ask the therapist to testify in a legal proceeding brought by or against the patient, either during the therapeutic relationship or thereafter. Some patients routinely sign these agreements and do not protest such provisions at the outset of treatment. Such provisions may never become an issue, since there may be no litigation during the course of therapy or thereafter. But that is not always the case.

My response to the many questions that are asked about the appropriateness and enforcement of such provisions in a disclosure document or contract has been consistent. The questions usually arise when unexpected litigation occurs or the prospect of litigation becomes known. I typically have advised inquirers that my view is that such provisions are generally not in the best interests of the patient, unwise, problematic, against public policy, unenforceable, and possibly unethical or unlawful. Depending upon the facts and circumstances of the particular situation, I could see a licensing board conducting an investigation, upon a complaint by a patient who signed such a form, that the licensee’s actions in “requiring” the signing of such an agreement as a condition of treatment constitutes a violation of one or more laws, regulations, or ethical principles.

Therapists who have utilized such a form often discover, when the need for the therapist’s testimony at a hearing, deposition, or trial becomes apparent, that the agreement is very likely unenforceable. The basic reason why such an agreement would be determined by a court to be unenforceable is because there are legal principles or statutes that say, among other things, that no person has a right to refuse to be a witness and that no person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing in any legal or administrative proceeding. These legal principles and laws constitute the public policy of the state. The laws of each state will vary in fine nuance as to how these principles are stated and, importantly, with regard to the exceptions to these basic principles.

The laws with respect to psychotherapist-patient privilege provide an exception to these general principles. Thus, if the patient was sued by someone, or even where the patient sues another, the privilege may apply and the general principles stated above would be inapplicable. The patient would be able to block the testimony of the therapist by claiming the privilege. But since the privilege belongs to the patient and not the therapist, the patient may waive the privilege and may want, even need, the therapist’s testimony in order to prevail in the litigation. Were the therapist permitted to refuse to cooperate and rely upon the agreement signed at the outset of treatment, the patient’s case (and justice) would be harmed or jeopardized. Again, since no person may refuse to be a witness or to testify in a legal proceeding (and assuming the patient waives any privilege that may exist), the agreement would on its face violate public policy (the law).

Sometime after therapy commences, a patient may be involved in a divorce or custody dispute, an auto accident, or may be unlawfully discharged from employment, or may be arrested for driving under the influence of alcohol or drugs. Some situations may involve an event occurring prior to the commencement of therapy, where the patient has no idea at the time of the occurrence that the therapist’s testimony may later be crucial to her case. If the therapist was permitted to rely upon the signed agreement, the patient would be harmed (financially or otherwise) because supportive evidence could not be accessed for use in court. Usually, once the patient obtains representation, the patient and therapist will both learn that such a provision is unenforceable. The therapist can simply be subpoenaed to testify at a deposition, hearing, or trial, and the therapist’s records can be subpoenaed as well. Since the patient wants the information, the protective psychotherapist-patient privilege is inapplicable.

Somewhat differently, if a patient was to seek to engage a therapist and disclosed that he is soon to be involved in a matter (for example, a custody or visitation dispute) that may be litigated, and that the therapist’s testimony and records would likely be needed, the therapist would be permitted to decline the case. The therapist might simply let the patient know, for instance, that he or she is uncomfortable with testifying in court and would be willing to refer the patient to another therapist. Generally, patients would not want to engage a therapist who might be hesitant to become involved in expected litigation, and would thus not force the issue. But if a patient signed such an agreement because she had no idea that she would be involved in some form of litigation during the course of therapy, a different situation is presented.

Mental health practitioners should expect that during their careers they will encounter litigation. Hopefully, the litigation will not be a lawsuit by a patient against the practitioner for alleged negligence or other wrongdoing, nor will it be an administrative matter, such as a licensing board enforcement action. Some practitioners are quite familiar with court proceedings and regularly testify as ordinary or expert witnesses in civil and criminal proceedings, including child custody and visitation proceedings, domestic violence cases, or in a variety of other matters. Learning about privilege, subpoenas, providing testimony, recordkeeping, and report writing should be a part of the education, training, testing, and armamentarium of mental health professionals of all licensures.

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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