Avoiding Liability Bulletin – July 2005
… Suppose that your client/patient doesn’t appear for a scheduled appointment and that shortly thereafter you are contacted by a deputy county coroner or deputy sheriff who says that he is investigating the death of your client/patient in order to determine whether the death was the result of a suicide or a criminal act. The investigator would like to talk with you and perhaps obtain a copy of portions of the records. While the typical and instinctive response might be to resist on the grounds of confidentiality, the law may allow or mandate your cooperation. Over the years, I have consulted with several therapists who wanted to cooperate because they believed that they had information that pointed to a suspect.
Before one can react appropriately, one must know what the law provides in their particular state for a person of their licensure. If there is no exception to confidentiality for the purposes of identifying a deceased person or determining a cause of death (usually the duty of the county coroner, sheriff, medical examiner or some other designated official), then the practitioner may need to resist disclosure and insist upon a signed authorization from the personal representative of the deceased (or whomever applicable law specifies).
If there is an exception to confidentiality, it is important to find out whether or not the law allows disclosure or requires it. The extent of the allowable or mandated disclosure and even the time frame may be specified in the law. One state’s law requires therapists to disclose information to the coroner “without delay upon request.” What are the specifics in your state? Find out now, when there is no crisis facing you.
ABOUT THE AUTHOR
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.
