AVOIDING LIABILITY BLOG

Duty to Warn

May 2015

Media coverage of the March 2015 tragic airplane crash in the French Alps once again brought to the fore the related issues of a therapist’s “duty to warn” and confidentiality when treating the dangerous patient. Much of the debate and discussion in the national media focused on the following public policy question – when should confidentiality give way to the need to prevent serious physical harm to the public or to one or more individuals? One commentator responded to that question as follows: “The protective privilege ends where the public peril begins.” This clever (but vague) statement comes from the famed Tarasoff v. Regents of the University of California decision by the California Supreme Court in 1974, which came to be known, inaccurately, as the case which established a “duty to warn.”

What I discovered from the media coverage was that there was a considerable amount of confusion, misinformation, broad generalities, and uncertainty being dispensed over the airwaves by the so-called experts or pundits. More than one commentator stated that when public safety is in peril, therapists are required to make a report to the authorities. Mention of the “duty to warn” was made. What was not said is the fact that in some states, there is no duty to warn – only a right to warn. Some commentators made it seem as though HIPAA required that all health care providers had to keep everything confidential under all circumstances and that all providers were governed by HIPAA. The reality is that HIPAA contains (in the federal regulations known as the “Privacy Rule”) its own exceptions to confidentiality, including the exception for what I will call “dangerous patient situations.” Also, unless the practitioner is a “covered entity,” he or she will be regulated by state law rather than by federal law or regulation.

Public policy questions were raised by this tragedy. Should a mental health practitioner be under a duty to report to the authorities or to the employer the fact that a client/commercial airline pilot is depressed or severely depressed? Is there a difference between practitioners who act in a treating role vs. an examining role? With respect to the latter question, there is a difference in the duties owed by a mental health practitioner who privately treats a patient and a practitioner who is hired by an employer to examine the patient/employee prior to or post-hiring. It should be clear to the patient that the practitioner who is in an examining role will report the results of the examination, perhaps in significant detail, to the employer. Thus, if it were discovered by the “examiner” that the pilot was depressed, this might get back to the employer and jeopardize the employee’s job – dependent upon the facts and circumstances. But if that same depressed pilot was seeing a therapist or counselor in a private practice situation, the practitioner would likely be required to keep the information (including the diagnosis) confidential.

Think about a pilot who tells her therapist that she occasionally uses cocaine. Is the therapist under any duty to report? Is the pilot/patient entitled to confidentiality? Suppose that the pilot shows no signs of suicidal ideation and no intent to harm anyone else. She describes herself as a recreational user and admits to snorting a small amount in the cockpit on one occasion eight years earlier. Making a report to the authorities or the employer will likely negatively impact the patient’s career – maybe permanently – and may result in a lawsuit against the therapist for breach of confidentiality. Keeping the information confidential will protect the privacy of the patient, allow for continued treatment by the therapist, and allow for continued monitoring and possible improvement of the patient’s condition. When considering such issues, practitioners sometimes ask themselves, among other things, whether they should act in a manner that is best for them (the individual practitioners) or in a manner that is best for the patient.

It is critical to understand the statutory and case law in your state to determine whether you are under an affirmative duty to protect others or the public, and precisely when that duty arises, or whether there is simply a right to act (e.g., choose to break confidentiality by calling the police or the intended victim). Practitioners will also want to know if there is an immunity statute in their state that protects practitioners from liability if they take specific actions under the circumstances described in the statute. Whatever the action taken, it is useful to first obtain corroboration of one’s judgment by means of a clinical consultation, if time and circumstance permit.

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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