Avoiding Liability Bulletin – April 2016
While thankfully not an everyday occurrence, it is not a rarity that a patient unexpectedly dies during the course of treatment or shortly after termination. Death may result from natural causes, from a long standing illness, from an auto or other accident, from a criminal act, or from an unexpected suicide. The sadness of such situations is obvious, and the loss will obviously affect the therapist’s psyche and provoke a variety of thoughts. Very quickly, however, the therapist’s thoughts may turn to the issue of confidentiality.
One or more family members, or a spouse or partner may be aware of the fact that the deceased was in treatment with the practitioner and may make inquiry. If the death is of a suspicious nature, the police or other investigators will likely inquire. The county coroner or medical examiner may contact the mental health practitioner in an effort to determine the cause of death. Or, the practitioner may fear that someone close to the patient will assert that the practitioner failed to recognize the danger that the patient was in immediately prior to the time of a suicide. While no one rule will govern every situation that can occur, there is one principle that will help in most situations – that is, the principle, recognized in most state laws, that the duty of confidentiality survives the death of the patient.
As I have written before, the first instinct that therapists and counselors should have when someone is seeking information or records concerning a patient, former patient, or deceased patient, is to resist. The instinct to resist will help to prevent a technical, inadvertent, or negligent release of confidential information – as when a therapist may be trying to console a grieving spouse or family member, or to convince someone that appropriate treatment was rendered. Resistance can change to compliance when there is a proper authorization presented, signed by someone with authority to sign, or when the practitioner knows or learns that compliance is required or permitted (without a signed authorization) under applicable law.
ABOUT THE AUTHOR
"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.