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Avoiding Liability Bulletin


This section of CPH and Associates' website is devoted to providing mental health practitioners with important and interesting information related to their practices. It is our hope and desire that with increased usage of this section of our website, practitioners will be a better able to avoid getting into legal or ethical difficulties by being more likely to �spot the legal issue� facing them. Once the practitioner realizes that a legal or ethical issue exists, he or she is hopefully resourceful enough to get a timely and reliable answer. Practitioners can, among other things, consult with their professional association.

Regulatory Boards and Confidentiality

June 2016

REGULATORY BOARDS - ENFORCEMENT

I was recently reading some proposed rules – more specifically – “disciplinary guidelines” and “uniform standards related to substance abusing licensees” – promulgated by the California Board of Psychology. Two provisions caught my eye. What is your first reaction or thought when you read each of the items? My brief thoughts and comments appear below.

1) In the introduction to the guidelines, the Board describes consumers of psychological services (I assume that means clients or patients) as a “particularly vulnerable population.” The Board describes itself as a consumer protection agency protecting this “particularly vulnerable population” from unsafe, incompetent, or negligent psychologists.

2) In the introduction to the uniform standards, it states that if the grounds for discipline involve drugs or alcohol, the applicant or licensee “shall be presumed to be a substance abusing licensee or applicant.”

With respect to item # 1, patients of psychologists are described as a particularly vulnerable population. Clients/patients are described not as potentially vulnerable or vulnerable, but particularly vulnerable. In fact, patients and clients (described by the Board as “consumers of psychological services”) come from all walks of life with all manner of strengths, weaknesses, and problems – much like the patients of physicians. The needs of the individual consumer and the services provided will vary widely. In fact, patients may or may not be vulnerable or particularly vulnerable. With all of the attention being paid (properly so) to removing or lessening the stigma from those who seek or receive counseling, psychotherapy, or mental health treatment, classifying clients or patients so generally as a particularly vulnerable population does not help to remove or lessen the stigma – it endorses and promotes it.

Viewed from the perspective of protecting the licensee from unfair or heavy-handed enforcement, such a generalization in a rule or regulation (albeit in introductory language) contributes to establishing the mindset that all patients are particularly vulnerable – merely because they seek psychotherapy or the services of a psychotherapist. Think about how the licensing board may view both you and a client who files a complaint. When you are the person about whom a complaint is filed, or the suspected wrongdoer approached by the licensing board, the government is investigating you. Government (the state agency) is there to protect the public from you – and that mission sometimes leads to unjust or unnecessary enforcement actions against licensees, especially when the government’s mindset is that the complainant is a particularly vulnerable person.

With respect to item # 2 (the presumption of being a substance abusing licensee or applicant), the opportunity for unfair treatment of licensees is increased substantially. The presumption, unless successfully rebutted, subjects the licensee to a whole host of oversight and required treatment and drug testing - considered by some as draconian. One conviction of a misdemeanor for possession of a small amount of marijuana, or one reckless driving conviction, no matter what the circumstances, will likely lead to the presumption that the licensee is a substance abusing licensee. While this presumption may be rebutted, I question its necessity or appropriateness. The licensing board might argue that this particularly vulnerable population (consumers of psychological services) must be protected from substance abusing licensees and that the presumption better protects the public. Others (including me) think that the licensing board should be guided by the facts involved in each particular case, and that such a presumption is unnecessary and can easily lead to unfairness.

CONFIDENTIALITY – PEER GROUP COMMUNICATIONS

When participating in peer group communications, whether a more formal or structured listserv, or an informal group of mental health practitioners, questions or concerns about patient confidentiality may sometimes arise among group members. Some participants may be rather open when sharing information pertaining to a patient or former patient, while others may be more circumspect. With respect to determining whether there has been a wrongful breach of confidentiality, much depends upon the applicable law and the particular facts and circumstances of each situation, but a few general thoughts may be worth keeping in mind.

If the purpose of the disclosures is to help in the diagnosis or treatment of the patient, and if the disclosure is to another licensed person or persons, no authorization from the patient may be necessary. This is the case in many states and for covered providers under HIPAA. I have written about this common exception to confidentiality on several prior occasions. Thus, if there was a group of therapists who regularly shared patient information for the purposes of consulting with their peers to help in the diagnosis or treatment of their respective patients, there would typically be no problem with respect to confidentiality.

While there generally is insufficient reason to share the name of a particular patient, even a revelation of the name might not (see below) constitute a violation, since the entire disclosure was to other therapists for a diagnostic or treatment-related purpose. Those who learn of the name are aware of the importance of confidentiality and may have expressly or impliedly agreed to not further disclose information shared. Moreover, there may be some circumstances where disclosure of the name is appropriate, necessary, or defensible. If for some reason revelation of a name did constitute a technical breach, the likelihood of harm or damage to the patient seems quite limited.

In any event, unless there is good reason to reveal the name of a patient, revelation can easily be avoided. Sometimes, however, sharing the details of a patient’s treatment in a peer group may provide so much detail that the identity of the patient may become known, even if the name of the patient is not divulged. Such a situation could occur when some of the participants in the group are from the same general community or the patient described is well known – in the public eye. It is wise to mask details of a particular situation so that the identity of the patient is well protected. Many details may not be relevant to the diagnosis or treatment and can be changed without jeopardizing the clinical aspects of the case. Masking is often done by practitioners who present case studies to colleagues or to students. Much clinical information is often revealed – but the practitioner is careful to mask the identity of the patient. It is the protection of individually identifiable health information that HIPAA and most state confidentiality laws protect.

The further away one gets from a pure peer group that provides a place for clinical consultation amongst a select group of participants, the more careful one needs to be. This is because the general exception to confidentiality that deals with communications with other health care providers for purposes of diagnosis or treatment of the patient may no longer be applicable or may be compromised by the “presence” of others who are not there to discuss or opine upon the patient’s diagnosis or treatment – albeit that the others are therapists. If, however, the identity of the patient is well- protected or masked, there would likely be nothing wrong with discussing the clinical aspects of the case in the presence of those others.

Whatever the kind of peer group (a clinical consultation group or a multi-purpose group or listserv), the sponsors, leaders, or initiators of such a group would typically discuss or promulgate some rules of operation, issue some cautions, and may seek some form of agreement or promise from the participants as to their expected behavior relative to patient confidentiality.

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by Richard S. Leslie, J.D. Click here for profile.
Attorney at Law - "At the Intersection of Law and Psychotherapy"

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