Avoiding Liability Bulletin – September 2014
In a recent issue of the Avoiding Liability Bulletin (March 2014), I asked whether it was ever permissible for a mental health practitioner to be physical or violent with a patient, such as pushing, slapping, or striking the patient. My answer was an unequivocal “yes.” I wrote that violence sometimes rears its ugly head in a variety of circumstances, sometimes unexpectedly or unpredictably, and that mental health practitioners have a right to protect themselves. I proposed the unlikely circumstance of an angry patient attempting to stab his therapist, and the therapist’s right to punch or otherwise strike the patient – or more. A recent news story (July 24, 2014) from Pennsylvania, where a psychiatrist shot a violent/threatening patient in an exchange of gunfire in the psychiatrist’s office, illustrates well that violence against a patient is not just a theoretical question.
I was interested to read in the Associated Press story that the health system involved disclosed that the teaching hospital where the violence occurred had a policy barring anyone except on-duty law enforcement officers from carrying weapons on its campus. While this seems like a side issue, the story made me think of some questions/scenarios. For example, did the psychiatrist request or obtain special permission to carry the gun he used because of his general or specific fear of violence? If he did not have permission to carry the gun on campus, would the health system, the employer, the police, or the medical board choose to take action against him? A local police chief commented that the psychiatrist’s possession of the gun saved lives. If some kind of action were taken, I would think that under the circumstances the punishment would be minimal.
I have previously written about the situation where a therapist decides to take possession of a patient’s gun, with the consent of the patient, after “talking the patient down” from his or her threat to commit imminent and serious violence against a third party. The therapist in such a situation may have instinctively opted to take possession of the gun in order to prevent the imminent violence, and may not have thought about the pros and cons of such a decision, nor had the time to do so. One of the dilemmas resulting from such a decision occurs when some time later the patient asks for return of the gun. If the therapist agrees to return the gun, serious concerns arise regarding use of the gun by the patient and the ensuing liability of the therapist. If the therapist refuses to return the gun, which is usually the case, what does that do to the treatment relationship and will the decision anger the patient? What if possession of the gun was in violation of the employer’s policy and in violation of state laws, despite the fact that the therapist acted instinctively and in good faith to protect the patient and others? What is (or should be) the liability of the practitioner?
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.
