Death Of The Patient

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Avoiding Liability Bulletin – December 2009

… What happens when your patient dies and your treatment records are thereafter subpoenaed or you are subpoenaed to appear and testify in a legal proceeding? Does the psychotherapist-patient privilege survive the death of the patient? If so, who is the holder of the privilege in such a case? How is the therapist or counselor to react to the service of the subpoena? Depending upon state law, the answers will vary. And, in some cases, there may be complications.

With respect to the question of who is the holder of the privilege, and by way of example, California law says that if the patient is dead, the holder of the privilege is the personal representative of the deceased. This would typically mean that the executor or administrator of the estate of the deceased is the holder of the privilege (the person who may waive or assert the privilege on behalf of the deceased). What does the law in your state provide? Who holds the privilege after the patient dies? Does the privilege survive the death of the patient (in other words, is it still applicable)?

With respect to the question of how the therapist or counselor should react, each practitioner should be familiar with the laws and policies or procedures that govern how a practitioner is to respond when served with a subpoena for treatment records or for the practitioner’s testimony. I have previously written, in the Avoiding Liability Bulletin, several pieces on the subject of privilege within the CPH and Associates’ website. Again using California as an example (and there is good reason to do so), a psychotherapist would typically assert the privilege and resist disclosure of records until the holder of the privilege can express his or her desires and give direction to the psychotherapist, or until the court orders the therapist to disclose the records or to testify.

Depending upon the wording of the statute involved in the case of a deceased patient, ambiguous situations may arise that can complicate matters for the therapist or counselor. For example, how is the therapist or counselor supposed to determine whether there is a “holder” in existence? What if the practitioner has no idea whether the patient left a will or a trust at the time the subpoena arrives? If there was a will that named a personal representative of the deceased patient, may that person assert the privilege even though a probate court has not issued the necessary paperwork to officially confirm the appointment as executor (personal representative)?

It is not my intent to answer these questions – only to raise them. I raise them for the purpose of encouraging the reader to inquire into these issues now – so that if faced with a situation – as many practitioners have faced – where the patient suddenly dies (e.g., victim of a crime, in an accident, suicide, heart attack), the issue of privilege is not ignored. Often, when a patient suddenly dies, one or more family members will contact the therapist or counselor for any number of reasons. The issue, and duty, of confidentiality is then in the forefront. This piece deals with privilege – that is, your right and/or duty, consistent with state law, to initially assert the privilege and resist the production of records (or the giving of testimony) in a legal proceeding, should your records (or you) be subpoenaed.

Once the privilege is asserted, the search for the “holder” of the privilege will typically begin. During the period of time that the privilege is first asserted by the practitioner and the time when a holder of the privilege is found to exist, will the practitioner be forced to produce records or perhaps testify? Would the judge rule that if there is no holder of the privilege in existence then the privilege has been lost and the records must be produced and testimony given? How does the law treat these issues in your state?


… Once again, the Federal Trade Commission has postponed the date when enforcement of the Red Flags Rule will begin. The new date has been set for June 1, 2010. I have previously written about the Red Flags Rule and its potential impact upon individual practitioners and others. See the June 2009 Avoiding Liability Bulletin.


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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