Avoiding Liability Bulletin – February 2011
Click here to reference the previous blog “Referrals: Part 1.”
… When does the duty to refer arise? I was speaking with a mental health practitioner recently who was dealing with a situation where a non-patient was in apparent need of therapy or counseling. The person in apparent need had referred a friend to the therapist, and the therapist was treating the friend. The person who made the referral e-mailed the therapist on more than one occasion, providing the therapist with information (some accurate, some not) about the patient. The therapist in such a situation should usually tell the person that nothing she (the informant) says is confidential, and that she (the therapist) is free to share this information with the patient. The therapist was also going to tell this person not to call or e-mail anymore and wanted to refer the person to a therapist because it was obvious that the informant had her own “issues.”
In such a situation, the question arises as to whether or not there is a legal or ethical duty to make a referral. If “yes,” then a referral must of course be made. If “no,” then the question arises as to whether a referral should be made. My view is that there is no general duty (unless state law, regulation, or ethical standards provide otherwise) to make a specific referral in the scenario described. To do so may create problems for the therapist. Referrals must of course be made with care, and they should be tailored to the individual’s needs. The failure to do so could result in allegations of negligence. Clearly, if a therapist or counselor has seen the patient for any amount of time, and then, for one reason or another, must terminate treatment, there typically is a legal and ethical duty to refer. However, if there is no practitioner-patient relationship established (e.g., no fee has been paid for services, and no contract, whether oral or written, has been entered into), and a referral is sought, a different situation is presented.
Some may argue (as do I) that when services are denied or refused for appropriate reasons, no duty to refer arises because no practitioner-patient relationship has been established. If such a duty does exist, it would likely be as a result of an ethical code provision or law or regulation that imposes such a duty. Such a provision can create problems for practitioners if drafted in such a way that the ethical duty to refer arises with those who are not considered patients or clients. Of course, if a practitioner desires to make a referral, that is another thing. There is a big difference between acting voluntarily and being mandated to act. Therapists and counselors must check the applicable ethical standards (or the applicable laws/regulations) in their respective professions and the states within which they practice to determine whether a duty to refer exists in particular circumstances.
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.