In our current issue of Part B News we explore best practices for preparing your practice to deal with patients who show evidence of being suicidal or homicidal. Constance A. Endelicato, a partner with Wood, Smith, Henning & Berman LLP and a member of the International Association of Defense Counsel, shares further thoughts on the subject in this Q&A.
Q: Understanding that state laws vary, is there a general legal principle upon which a provider may break patient confidentiality to prevent what that provider reasonably considers a danger that the patient will commit suicide?
A: In 1974, the California Supreme Court established an unprecedented decision in Tarasoff v Regents of University of California, which established a duty owed by a therapist to protect and warn of potential harm posed by a patient. This decision not only impacted the state of California but also impacted many states throughout the nation, as it created a new requirement to violate the therapist-patient confidentiality privilege.
Since that time, there have been numerous revisions through appellate and legislative changes over the years. Ultimately, the general consensus in California and most states is that the therapist has a duty to protect, while there no longer exists a duty to warn.
Hence, the provider must protect the patient from harming him or herself by suicide. The provider owes a duty of care to inquire as to the mental status of the patient and to assess whether the patient is experiencing suicidal ideation. The provider is still provided immunity if he or she chooses to take action to warn, as long as the act of warning does not constitute a breach of the standard of care. Nevertheless, warning the potential victim or police is no longer a requirement.
Q: How about when the provider is similarly concerned that the patient will harm someone else?
A: Again, the Tarasoff principles seem to reign. In most states, therapists are permitted to “violate” confidentiality if the therapist believes there is a serious, imminent threat by the patient to others. Hence, the therapist can warn potential victims and the police and any other appropriate parties if such notification is deemed to be necessary for the protection from violence.
Q: Any advice with regard to documentation in the patient file to justify the action?
A: Medical records, including those of a therapist, are protected by the Health Insurance Portability and Accountability Act (HIPAA). However, HIPAA’s regulations provide exceptions defining when it is appropriate to break confidentiality, particularly in circumstances when a failure to do so may result in harm. Further, once in litigation, the privilege may be waived and/or the court may order production of the relevant portions of the records. Hence, it is imperative that the provider, as in all occasions, prepare full and complete documentation of the consultation or communication with the patient.
Particularly, if there are threats of harm, the provider must document the details of the history, presentation, assessment, behavior, comments and threats of harm to oneself or to others, including quotes of such threats, to document the patient’s precise words of concern. Conversely, documentation ruling out suicidal ideation or thoughts of inflicting harm upon others is also important.