AVOIDING LIABILITY BLOG

Know Your Risks: Family Law, Fictitious Business Names, Privilege / Confidentiality, Subpoenas / Privilege, Testimony Under Oath and Child Abuse Reporting

Avoiding Liability Bulletin – September 2017

FAMILY LAW

One of the most important things for practitioners to know about family law involves the issue of child custody. More specifically, it is important to know the difference between physical custody and legal custody (or terms of similar import), since this will generally determine which parent has the legal authority to consent to the treatment of a child or access a child’s treatment records, which parent is authorized to make the decisions regarding the health, education, and welfare of the child, or whether the consent of both parents will be required in order to commence treatment. It is often wise and sometimes necessary to ask a parent to provide the practitioner with a copy of the most recent court order regarding child custody/visitation and to check with that parent’s attorney if there are any questions, ambiguities, or suspicions.

What if the parents share legal custody (e.g., joint legal custody) and one of the parents demands that treatment of the 12 year old child/patient cease? May the practitioner lawfully continue to treat with the consent of just one of the parents if the practitioner believes that treatment is essential to the child’s mental health? Should the practitioner continue to treat the minor with the consent of just one of the parents? Are there any risks if the practitioner complies with one parent’s demand that treatment of the child ceases forthwith? If both parents initially consented to the treatment of the minor, must both parents request/demand a termination in order for the practitioner to cease treatment?

FICTITIOUS BUSINESS NAME

Most states allow sole practitioners, partnerships, or professional corporations to conduct business under a fictitious business name. There are various requirements that states typically impose in order for practitioners to properly adopt a fictitious business name, such as “The XYZ Counseling Center” or “Green Tree Counseling.”  Practitioners must make sure that the name chosen is not false, misleading or deceptive. State law may mandate transparency and provide consumer protection by, for example, requiring those who conduct business under a fictitious business name to inform the client as to the name or names of the owner(s) of the business and the title of the license or licenses held by the owner(s). Even if not required, such disclosures may help to avoid allegations of deceptive behavior.

What are the penalties or liabilities for doing business under a fictitious business name when there has been no filing of required forms or non-compliant publication by the practitioner? If a sole practitioner conducts business under a fictitious business name that includes the word “center” or “and associates,” might that be viewed by the consumer and the licensing board as misleading?

PRIVILEGE AND CONFIDENTIALITY

Suppose that a licensed mental health professional reveals to a spouse the identity of a particular patient currently being seen who enjoys some degree of notoriety in the community. Suppose further that the practitioner cautions the spouse about the sensitive and private nature of the information and also discloses a few details about the treatment. Has the therapist breached confidentiality? Is there a husband/wife statutory privilege for confidential communications in the state (there typically is)? Does the fact that the communication between the practitioner and the spouse is privileged help in the defense of the practitioner during a licensing board enforcement action alleging breach of confidentiality?  The answers to these questions are dependent upon knowing the difference between the concepts of confidentiality and privileged communication, which I have written about in multiple prior articles here at CPH.

Are all communications between a licensed mental health practitioner and patient confidential?

Are all privileged communications between a mental health practitioner and patient confidential?

SUBPOENAS AND PRIVILEGE

The actions a licensed mental health practitioner takes when served with a subpoena for records or for appearance at a deposition or trial depends upon the particulars of state law and the circumstances extant. Generally, however, the initial instinct should be to resist rather than to comply. I have counseled some who have released records improperly because they thought that the subpoena was a court order and that they had to comply. As soon as “subpoena” is in one’s consciousness, the mind should turn to the issue of privilege. Since the patient is generally the holder of the privilege, the practitioner should typically want to know whether the patient is waiving the privilege or asserting it. Even when the patient improperly asserts the privilege, the practitioner must sometimes work through the situation and resist compliance until the issue is resolved. It is sometimes necessary to get the patient’s attorney to educate the patient as to the fact that the privilege has been waived as a matter of law – as when the patient tenders (puts into issue) his or her mental or emotional condition in a lawsuit.

TESTIMONY UNDER OATH – CREDIBILITY

Practitioners don’t always know when and in what kind of a case their testimony under oath will be required. There are several things that can be done in advance of any such testimony that can help the practitioner avoid problems and maintain credibility. Keeping good records (whatever that means!) can help, and reviewing the records before testifying can help even more. The other thing that can be done, well in advance, is to be very careful when advertising or preparing and distributing your curriculum vitae or resume.

I have seen more than a few cases where the practitioner’s credibility has been harmed during direct or cross examination by the exposure of false, misleading, or deceptive information (prepared years earlier) in an advertisement or in a resume or curriculum vitae. Sometimes the representation made may be of a relatively minor or non-material nature – perhaps an exaggeration. Nevertheless, once the practitioner’s credibility is called into question upon cross-examination, the patient’s case may become compromised. If you would lie about a minor matter, the argument goes, you would likely lie about a more substantial or pivotal manner.

CHILD ABUSE REPORTING

Suppose that your 16 year old client tells you that his mother slapped him in the face during breakfast and before he left for school, and that the slap briefly left some redness on his cheek. Is a child abuse report required to be made? Is some limited form of corporal punishment by a parent against a child allowed in your state of practice? In a case that I was involved with, the client did not want a report to be made (and it wasn’t), but when he soon thereafter told his teacher at school about the slap, the teacher filed a report. Later, the focus of attention was on the mental health practitioner for an alleged violation of the child abuse reporting law (failure to report is generally a crime).

The answer to this question (and others) depends upon the totality of the facts and circumstances involved and the nuances and interpretations of state law. In the above referenced case, the sixteen year-old high school football player told his mother to “go f___ yourself” when she questioned him about his grades. She slapped him across the face and told him not to speak to her in such a vulgar manner. My view was that there was no physical injury (e.g., no bruises, burns, cuts) inflicted by other than accidental means, that the mother’s actions were reasonable under the circumstances, and that a report was not required. Reasonable corporal punishment by a parent against a child was lawful in the state involved.

Generally, the desire of a client that a report not be made should be irrelevant to the determination of the practitioner as to whether a report must be made. Failure to make a mandated report can result in criminal, civil, and administrative liability. Making a child abuse report, whether mandated or permitted, can sometimes result in a claim that the report was not warranted and that a breach of confidentiality occurred. In such breach of confidentiality/privacy complaints made to the Office for Civil Rights (OCR), the enforcement arm of the U.S. Department of Health and Human Services (re: HIPAA and the Privacy Rule), the OCR is not permitted to review the reasonableness of the mandated reporters’ judgments in making child abuse reports. Such a limitation likely does not apply to licensing board enforcement actions under state law.

What if the mother’s instinctive slap in the face left no red mark but instead resulted in a small cut to her son’s lip? Was the cut lip accidentally inflicted? Is the mother a child abuser?

DEFINITION OF “PSYCHOTHERAPY”

I have written about this before and have shared this definition at workshops. So in case you have not read this before, I again present this thought-provoking definition – which is not of my creation. The author of this definition, Daniel B. Hogan, wrote a multi-volume work dealing with state regulation of psychotherapy.

“Psychotherapy is an unidentified technique, applied to unspecified circumstances, with unpredictable outcomes, requiring rigorous training”

 

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.

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