Avoiding Liability Bulletin – October 2006
In the April 2005 (Volume 2) issue of the Avoiding Liability Bulletin I wrote about a huge problem in the state of California with respect to the issue of the dangerous patient and the duty of a therapist. In large measure, the problem has likely been solved because of the passage of legislation that I worked on in conjunction with the sponsor of the bill, the California Association of Marriage and Family Therapists. The legislation affects California psychotherapists only, and its effect is to establish a “safe harbor” for psychotherapists who take certain actions when their patients communicate threats of imminent and serious physical violence against readily identifiable others.
Prior to passage of this bill, some within the California judiciary (and others) interpreted the existing section of law as the creation of a new (post-Tarasoff decision) duty, which if not followed in every case where a patient communicates to his or therapist a serious threat of physical violence against a reasonably identifiable victim, will result in automatic liability for the therapist. More specifically, if the therapist did not make reasonable efforts to communicate the threat to the intended victim and to a law enforcement agency, liability would automatically attach. Thus, therapists who hospitalized a patient – no matter how reasonable the action and no matter what transpires at the hospital and upon discharge – would incur automatic liability if the patient later carried out the threat. This situation has hopefully been rectified (effective January 1, 2007) by the newly passed legislation, which makes clear that the two requirements specified above are for the purpose of gaining immunity from liability.
If a therapist takes other action, like hospitalizing a patient, he or she should not be automatically liable, but rather, should be liable only if it is determined that such action was negligent. Although there would not be immunity, a judge or jury would have to determine if the therapist’s actions were reasonable under the circumstances.
Does your state provide immunity from liability if specific actions are taken? And, if those specific actions are not taken, what is the possible consequence? Check now, before being faced with a dangerous patient situation requiring quick action. Before any action is taken, however, one must know when the duty or the right to warn or break confidentiality is “triggered.” As with other areas of law covered in this Bulletin, state laws vary – so be careful!
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.