AVOIDING LIABILITY BLOG

April Check-In: Review Your Practice

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Avoiding Liability Bulletin – April 2020

 

NOTE:  The purpose of this issue of the Bulletin is to review aspects of practice that may raise questions or dilemmas for practitioners and to encourage readers to think about these topics in some detail. I will be answering these questions in future issues of this Avoiding Liability Bulletin. The laws in each state often differ with the laws in other states, so the answers to these questions may also differ. My answers will, as always, rely upon and reference California law. The reader is encouraged to determine how the law in your state treats any particular issue and how the law may differ with the answers provided by me in future issues of the Bulletin. 

 

Answers appear in the May 2020 issue of the Bulletin.

 

  1. If an adult patient informs her therapist that she was abused when she was a minor, the therapist is not under a duty to report the child abuse or to investigate the current whereabouts of the abuser.

 

  1. If a parent slaps his or her 17 year old child in the face when he uses foul language at the dinner table, such conduct would not be reportable when the 17 year old child informs his therapist of such conduct.

 

  1. If the slap in question #2 were to cause the boy’s lip to bleed from a small cut, a report would not be required if it was determined by the therapist that the injury inflicted was accidental and unintended.

 

  1. If a pre-licensed supervisee was to fail to make a required child abuse report, the licensed supervisor should immediately direct the pre-licensed person to file a report, even though the report would be late as per the applicable child abuse reporting requirements.

 

  1. A licensed therapist is required to report child abuse even if the patient tells the therapist that the abuse now being revealed was previously reported to the authorities.

 

  1. When a licensed therapist is treating a minor who is twelve years of age or older with the consent of both parents, either parent is the holder of the psychotherapist-patient privilege.

 

  1. Licensed therapists are allowed to deny the request of a parent to inspect the records of the therapist who is treating their child, regardless of the age of the child.

 

  1. When a minor patient who is a court ordered emancipated minor informs her therapist that she was abused by her uncle while she was an emancipated minor, there is no duty to report child abuse.

 

  1. Prior to the delivery of telehealth (aka telemedicine) services to a patient, licensed mental health practitioners are required to obtain the consent of the patient, which may be oral.

 

  1. When treating a patient in your state of practice via telehealth, such treatment might need to stop when the patient leaves the state for business or personal reasons and thereafter seeks one or more telehealth sessions while out of state.

 

  1. When treating a patient via telehealth, the practitioner is required to ascertain where the patient is physically located at the start of each session, including the address.

 

  1. When treating a patient via telehealth, practitioners must warn the patient that if he/she leaves the state at any time or for any reason, the practitioner may be prohibited from continuing to treat the patient because the licensing board in the state where the patient is physically located may take the position that the practitioner is “practicing without a license” in that state.

 

  1. Licensed mental health practitioners are generally required to inform patients, prior to the commencement of treatment, of the mandatory exceptions to confidentiality, including the duty to report elder abuse.

 

  1. Licensed mental health professionals are generally permitted to release patient information, such as a diagnosis, to other licensed health practitioners without the patient’s signed authorization.

 

  1. If a patient threatens his or her therapist with imminent and serious physical violence, the therapist is permitted to inform the police of the threat and to provide the name and home address of the patient.

 

  1. Supervisors in non-profit corporations are generally not liable for the negligent acts of their supervisees.

 

  1. If a patient demands to see a copy of the treatment records during a therapy session, the therapist has a right to deny the request and to inform the patient that his/her right to access the records is not absolute.

 

  1. When the identified patient is a couple, the mental health practitioner should generally not provide copies of the records to one member of the unit without a valid authorization from the other member.

 

  1. When a licensed mental health practitioner is served with a subpoena for the treatment records of a patient, the practitioner must take care not to assert the psychotherapist-patient privilege until the patient, who is the holder of the privilege, directs the practitioner to do so.

 

  1. The duty of confidentiality and the psychotherapist-patient privilege survive the death of the patient.

 

ABOUT THE AUTHOR

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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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