Course content © Copyright 2018 - 2025 by William W. Deardorff, Ph.D, ABPP. All rights reserved.

COURSE OUTLINE

Introduction to Course and Overview

Learning Objectives

Author Disclaimer

Liability and Malpractice in Behavioral Health Practice

Psychological Malpractice Defined

     Owing a Duty to the Patient

     Proving a Breach of Duty

     Establishment of Injury

     Proving Proximate Cause of Patient’s Injury

Areas of Liability Risks in Behavioral Health

     Practicing Medicine without a License

          Diagnosing and Treating a Medical Condition

          Interfering with Appropriate Medical Treatment

          Providing Actual Medical Treatment

     Failure to Consult, Refer, or Communicate

          Failure to Consult

          Failure to Refer

          Failure to Communicate

          Medication Issues

     Suicide and Malpractice Risk

     Duty to Protect

     Duty to Protect and HIV Positive Patients

     Confidentiality

     Psychological Evaluation

     Supervision of Trainees

     Sexual Victimization and Malpractice

          Touching, Nudity and Medical Procedures

     Billing, Collection, and Financial Issues

     Association with Physicians in “Risky” Areas of Practice

     Managed Care

Minimizing Malpractice Risks

Suggested Reading

References

INTRODUCTION TO THE COURSE

This course provides an analysis of some legal issues that may arise in the practice of behavioral health. It delineates general concepts of mental health malpractice and focuses on those high-risk areas pertinent to behavioral health.  The course also discusses licensing board complaints, which occur much more frequently than malpractice actions and can be as equally devastating professionally, financially, and personally.  Throughout the course, there is an emphasis on proactively managing risky areas of practice.  This is not done in a defensive manner, but rather methods that are designed to enhance the quality of care. 

AUTHOR DISCLAIMER

The course reviews ways to minimize risk, but it does not provide legal advice; nor should it substitute for the assistance of legal counsel, should a practitioner encounter ethical or legal issues in his or her practice.  This course provides an analysis of some legal issues that may arise in the practice of behavioral health. 

This course is not a final decision on any ethical or legal subject, as all ethical and legal issues are constantly under revision and consideration.  This material is not meant as a personal or clinical consultation, nor is it meant as a substitution for contact with an ethics committee, attorney or professional consultant.  Excerpts from a variety of ethics codes are presented for illustrative purposes only.  The excerpts may not be presented in full or may be paraphrased. All ethical codes that apply to a specific issue may not be presented.  Be sure to check your actual ethical code language for precise wording or application.

The proper handling of any situation depends on the facts unique to that situation, as well as applicable ethical principles and laws. Those laws may differ from state to state and may change with some frequency. Behavioral health practitioners who encounter ethical or legal issues in their practices should consult with a competent attorney familiar with the laws in their state.

LIABILITY AND MALPRACTICE IN BEHAVIORAL HEALTH PRACTICE

As discussed by Campbell and Lorandos in their classic series, Cross Examining Experts in the Behavioral Sciences (2018, pages 10-16),

“It is well stated in law, for example, that patients have (1) the right to psychotherapy treatment in the least restrictive environment, (2) the right to exercise informed consent to treatment alternatives, (3) the right to treatment that satisfies the standard of care, and (4) the right to expect that their therapist will act ethically”. 

When a behavioral health practitioner violates any of these rights, he or she is at risk for a liability claim.  In the event of a malpractice action or licensing board complaint, the professional behavior of the practitioner will be judged against the standard of care for the specialty including such things as the ethical standards, guidelines promulgated by the appropriate professional agency and expert testimony regarding accepted evaluation and/or treatment procedures.  In another course, ethical issues in the practice of behavioral health are discussed.  Since transgression of any of these principles may be grounds for a liability action of some type, this course presents what might be considered the worst possible outcome to alleged professional misconduct: that of a liability claim.  Having an understanding of malpractice and licensing complaint issues can help the behavioral health practitioner be “proactive” by practicing at or above the standard of care and implementing appropriate risk management techniques 

Ideally, malpractice law serves three important social functions (Klein & Glover, 1983; Reamer, 2015). First, it protects the public from professional wrongdoing by providing aversive consequences for misconduct. Second, it transfers the “loss” from one party to another whom more so deserves to pay. Third, it distributes the cost of a professional’s negligent conduct across the profession at large through insurance premiums. In these ways, the threat of malpractice provides constant pressure on professional communities to self-regulate and self-scrutinize while giving the public a mechanism to recompense when this does not occur.

As evidenced by spiraling medical costs, partially related to increased malpractice litigation, it appears that the social function of malpractice law has been disrupted by consumers’ propensity to initiate litigation. This may either be where negligence has occurred or, increasingly, where no negligence is ultimately determined. It might be speculated that skepticism about health care treatment and heightened angry affect over medical costs combined with an increase in the number of attorneys per capita have fostered the likelihood of malpractice litigation occurring (VandeCreek & Stout, 1993). Costs are incurred in such legal actions, even if the professional is exonerated. In the vast majority of cases, the case will be settled out of court in an effort to avoid the higher expenditures regardless of whether there was misconduct, thus reinforcing suit-filing behavior independent of the merits of the case (VandeCreek & Stout, 1993; Reamer, 2015). There is a societal cost for such freedom of action, and this is ultimately passed back to consumers.

Mental health professionals have not been threatened by malpractice in the same magnitude as physicians (National Practitioner Data Bank, NPDB, 2018). There are at least two reasons thought to be responsible for this finding: (1) The nature of the therapist-patient relationship helps to inhibit such action (Charles, 1993).  Even in the medical field, studies have demonstrated that the likelihood of a patient initiating a malpractice action is related to the doctor-patient relationship (Moore, Adler, & Robertson (2000). (2) In the mental health area it is difficult to prove the four malpractice standards to be described subsequently (Bernstein and Hartsell, 2004). However, along with a greater public awareness of mental health practitioners’ professional behavior (Wright, 1981), malpractice claims in mental health practice are on the increase-a trend that is continuing (Montgomery, Cupit & Wimberly, 1999;  NPDB, 2018; Stromberg & Dellinger, 1993).  As concluded by Campbell and Lorandos (2001), “In a very real way, mental health professionals have been ‘discovered’ by malpractice attorneys in the last 25 years” (page 10-80). 

Beyond public scrutiny of general mental health practice, those working in the area of behavioral health potentially open themselves to a myriad of new malpractice liability risks of which they should be aware (Halley, McDaniel, Bray et al., 1998; Hanson, Kerkhoff and Bush, 2005; Knapp & VandeCreek, 1981; Reamer, 2015). First, because behavioral health specialists practice in close concert with the medical profession and deal more often with physical problems,  there may be heightened liability  risks of such things as inadvertently practicing medicine without a license, failure to refer or communicate within the healthcare system, breaching confidentiality of psychological information by placing it within the medical record, legal retaliation in response to not psychologically clearing a patient for an elective medical procedure (e.g. gastric bypass or spine surgery) and being named in a lawsuit that is primarily against a physician associate.

Second, the nature of the therapist-patient relationship, often thought to protect the traditional psychotherapy practitioner against malpractice, can be very different in many behavioral health cases. Often, the behavioral health intervention may be limited to evaluation and/or brief treatment.  As such, an intimate, deep, long-term psychotherapeutic relationship is not developed (nor is it considered necessary for treatment gains).  Third, physical harm may be much more likely in the practice of behavioral health than in more traditional psychological treatment. This is due to the fact that, “many of your patients really are sick” (Haley et al., 1998, page 238). 

PSYCHOLOGICAL MALPACTICE DEFINED

Malpractice claims fall within two broad categories:  a professional error of commission (including misfeasance and malfeasance) or omission (nonfeasance).  In the first category, there is a claim that the practitioner carried out his or her professional duties improperly or in a fashion inconsistent with the profession’s standard of care.  This might include such things as incorrect or injurious treatment, failure to diagnose, breach of confidentiality, abandonment, etc.  There is a difference between misfeasance and malfeasance (Reamer, 2015, 2018).  Misfeasance is defined as, “the commission of a proper act in a wrongful of injurious manner or the improper performance of an act that might have been performed lawfully” (Reamer, 2003, page 4).  Examples include inadvertently disclosing confidential information or inadequate informed consent procedures.  Malfeasance is defined as, “the commission of a wrongful or unlawful act” (Reamer, 2003, page 4).  Examples include sex with a minor, embezzlement, physical assault, wrongful death, and violation of a patient’s civil rights.  

Malpractice suits have been generally founded in tort or contract law as opposed to criminal law. The difference is that the former pertains to acts damaging to a person whereas the latter applies to transgression against society (Bernstein and Hartsell, 2004; Reamer, 2015; Schutz, 1982). To make a successful case of malpractice, the plaintiff must prove, by a preponderance of evidence, the following four elements (Deardorff, Cross, & Hupprich, 1984; Feldman & Ward, 1979; Furrow, 1980; Gifis, 2003; Harris, 1973; Reams, 2003):

Each element is discussed subsequently, with its implications for behavioral health practice. Each of these must be demonstrated by a preponderance of evidence. They are summarized by the 4D mnemonic: Dereliction of-Duty-Directly causing-Damages (Rachlin, 1984).

Owing a Duty to the Patient

The first of these allegations, that the practitioner owed a duty to the patient, is usually the easiest to prove (Reamer, 2015; Schutz, 1982). This basically involves proving that a professional relationship existed between the practitioner and patient; such things as a treatment contract, bill for services, or chart notes, are sufficient evidence. Related to this contract, when a professional accepts a case, he or she owes a duty to possess the level of skill to treat commensurate with that possessed by the average member of the profession in good standing in the community. This is considered the prevailing standard of care in the profession.   Furthermore this skill and learning must be applied with reasonable care (Deardorff et al., 1984; “Professional Negligence,” 1973; Reamer, 2018; Zur, 2005).

Proving a Breach of Duty

To prove a breach of duty, the plaintiff must show that the practitioner’s behavior fell below the acceptable standard of care.  This might include not having proper knowledge to treat or that the knowledge was misapplied.  Of course, proving a breach of duty requires that the prevailing standard of care be fairly clearly established.   The standard of care is an important concept not only relative to liability claims but also in guiding one’s practice.  Unfortunately, many therapists do not have an understanding of the concept (Caudill, 2004).  The standard of care is the usual and customary standard of practice in the community for the same profession or discipline (Caudill, 2004; Doverspike, 1999; Williams, 2003). The standard of care is a complex construct and is not contained in any textbooks.  Rather, it is derived from six concepts (See Caudill, 2004; Williams, 2003; Zur, 2005 for a review):

Outrageous actions such as beating a patient (Hammer v. Rosen, 1960), engaging in sexual contact with a patient as part of treatment (Roy v. Hartogs, 1975; Simon, 1995, 1999) or nontraditional improper treatment resulting in injury can provide a prima facie case of malpractice (Cross & Deardorff, 1987; Knapp, 1980; Reamer, 2015). One of the most widely publicized instances of improper and non-traditional treatment was a Colorado case in which a ten-year-old girl died of suffocation as part of “rebirthing” treatment for an attachment disorder.  The “treatment” included wrapping the girl in a blanket to provide the rebirthing experience.  The girl was unable to breathe and died of asphyxiation.  The treating social worker was convicted of death resulting from reckless child abuse and sentenced to 16 years in prison (See Reamer, 2015; Nicholson, 2001 for a review). 

Other than cases of this nature, proving a breach of duty has, historically, been difficult in an ambiguous practice such as psychotherapy; however, this situation is clearly changing.  With advancements in psychological research there has been a movement towards identifying empirically supported (“evidence-based”) treatments and using those criteria to select interventions for particular conditions (Chambles and Ollendick, 2001; Weisz, Hawley, Pilkonis, Woody, & Follette, 2000).  Many of these evidence-based guidelines are summarized in such texts as, Clinical Handbook of Psychological Disorders: A Step-by-Step Treatment Manual (Barlow, 2014), Handbook of Assessment and Treatment Planning for Psychological Disorders (Antony and Barlow, 2002), A Guide to Treatments That Work, 2nd Ed. (Nathan and Gorman, 2002) and Social Work in Mental Health: An Evidence Based Approach (Thyer and Wodarski, 2007).  It is not inconceivable that future liability actions will rely on published guidelines to help establish the standard of care against which behavioral health practitioners’ actions will be judged.  However, national organizations such as APA have adopted policies on evidence-based practice that, embrace a broader set of constructs than lists of empirically supported treatments.  As in medicine, evidence based psychological practice in psychology requires the integration of the best research evidence with the clinical expertise of the practitioner and the values/perspectives of the patient (APA, 2006).

In behavioral health, there has been a focus on empirically based treatment interventions for many years. As discussed by Knapp and VandeCreek as early as 1981, clinical health psychologists may have to adhere to more specifiable standards of care than traditional psychologists, because the techniques used can often be more explicitly delineated. This conclusion rings true today.  Many treatments used in the practice of behavioral health arise from behavioral, cognitive, and social learning frameworks that have a strong empirical base; thus, aspects of evaluation and treatment are often more measurable than in psychodynamically oriented approaches. Examples include neuropsychological assessment, objective psychological assessment of medical conditions, behavioral observation data, and psychophysiological evaluation and treatment. 

As reviewed previously, the standard of care against which the practitioner’s behavior is judged in malpractice litigation is established, in part, by expert testimony (e.g. consensus of the professionals). In the past, it has been difficult to get members of a profession to testify against one another (Markus, 1965), but this is less problematic since the courts abandoned the “locality rule” (which required the expert witness to be from the same geographical area as the defendant/practitioner).  This change in court practice has had two important implications. First, it has successfully diminished the “conspiracy of silence” related to expert witness testimony (Slovenko, 1978). Second, it means that a reasonable standard of care for psychological practice may be set at the national standard instead of a community standard and that the practitioner may have malpractice liability where local standards are below those of the national level (Pope, Simpson, & Myron, 1978; Reamer, 2015).

This may be especially relevant for the practice of behavioral health, because it is a highly specialized and expanding area. Because there are likely to be fewer behavioral health practitioners in a community, the court would be forced to draw expert witnesses from a more national geographical territory. Therefore, the standard of care may be set commensurate with a national, rather than a local, average minimum level of practice expertise. With this in mind, “psychologists who expand their practices into this specialty should obtain appropriate training and expertise before presenting themselves to the public as specialists” (Knapp & VandeCreek, 1981, p. 680). As discussed by Schutz (1982) and Reamer (2003), if psychologists, or other behavioral health practitioners, present themselves as specialists within a general practice area, they will be held to the highest standard of care of the specialty practice.  For those presenting themselves to the public as behavioral health specialists, or as specializing in treating disorders primarily within the domain of the specialty, then the higher standard of care will apply.

Establishment of Injury

The third element the plaintiff must demonstrate is that harm or injury was suffered. Where physical harm has been sustained, it is easier to establish injury and specify monetary compensation; where the injury is emotional or psychological, it can be very difficult to establish compensation amounts (Klein & Glover, 1983; Reamer, 2015). For instance, in an example of an injured worker who had a dominate arm amputation, it would be relatively easier to estimate compensation on the basis of medical costs, physical disability, lost wages, and pain-suffering than in a psychological injury case.  Expert witness testimony is often required to help objectify a psychological injury.

Proving Proximate Cause of Patient’s Injury

The last allegation to prove is that the plaintiff’s injury was either directly caused by the practitioner’s action or a reasonably foreseeable consequence of such behavior. Where the practitioner’s behavior is not outrageous, proving this essential causal link between professional conduct and mental injury can be very difficult (Tarshis, 1972; Reamer, 2015; Slovenko, 1978). However, if the injury is physical, proof is much easier (Dawidoff, 1966; Reamer, 2015). In the practice of behavioral health, the injury is more likely to be physical, because the patient is often being treated for psychological factors affecting a physical condition. An example of this might be a behavioral health specialist encouraging a cardiac patient to engage in an inappropriate amount of exercise without medical clearance and thus inducing a myocardial infarction.

AREAS OF LIABILITY RISKS IN BEHAVIORAL HEALTH

Although most articles about psychotherapists’ liability focus on malpractice, a licensing board complaint can be just as devastating to the practitioner and is far more likely to occur.  As discussed by Welch (2002), “Most psychologists don’t really understand that their vulnerability to an unjustified licensure complaint and resulting investigation is infinitely greater than the risk of a malpractice suit” (page 3).  A malpractice suit is difficult to file and requires that the plaintiff/patient convince an attorney that there is enough merit in the case to expect recovery on a contingency basis.  On the other hand, filing a licensing board complaint requires only filling out a form (which is now usually done on-line).  For instance, in California in 2006, the Board of Psychology received 537 complaints but this resulted in only 102 investigations being opened.  Of those 102 investigations, 23 resulted in some type of penalty decision (e.g. reprimand, revocation, etc) and 36 were sent to the District Attorney for criminal prosecution.  As can be seen, only a small percentage of complaints lead to sanctions or prosecution.  However, even in the 478 cases in which the psychologist was exonerated, the practitioners had to endure the stressful process of defending against a licensing board complaint.  For the fiscal year of 2015-2016, the CA Board of Psychology received 980 complaints. Of these 280 were closed without investigation, 723 were referred for investigation, and 77 were pending (Click here for data summary HERE). Similar issues apply to social workers, counselors, marriage and family therapists, and other allied healthcare professionals.  Being aware of areas of liability and risk management strategies can help the psychologist avoid the complaint altogether.  Although the following discussion is primarily related to malpractice risk, it also applies to licensing board complaints.

PRACTICING MEDICINE WITHOUT A LICENSE

One of the primary increased malpractice risks one encounters in moving from general clinical work to behavioral health involvement is practicing medicine without a license. Several authors (Cohen, 1979; Furrow, 1980; Knapp & VandeCreek, 1981; Reamer, 2015) have addressed this increased malpractice liability, and their discussions incorporated into the following. Practicing medicine without a license overlaps significantly with failure to refer, consult and communicate as discussed subsequently.

The practice of medicine can be generally defined as “persons who diagnose or treat disease, or who represent themselves as healers of disease” (Knapp & VandeCreek, 1981, p. 678). Although the practice of medicine is clear in such things as surgery or chemotherapy, in other areas it becomes much less definable. These less clear areas relevant to “drugless healers” (e.g., psychologists, social workers, counselors, marriage and family therapist, etc.) include diagnosing and treating patients within the bounds of one’s own discipline and not crossing over into medical practice.

Diagnosing and Treating a Medical Condition

Behavioral health specialists will often become involved in the direct treatment of a medical condition.  This is entirely appropriate when done in close collaboration with the patient’s physician.  In some situations, such as independent solo practice, ongoing communication with the patient’s physician can be difficult and often neglected by the practitioner. The following example potentially constitutes practicing medicine without a license (making a medical diagnosis) and/or failure to refer. 

There are two problems with this case from both liability and ethical standpoints. First, C.J. had not had an appropriate medical workup related to the chief complaint. Within the practice of behavioral health, medical evaluation is almost always necessary and failure to refer or consult can be grounds for malpractice (this will be discussed subsequently). Second, she had not received a diagnosis of muscle-contraction headaches from a physician. Even though the symptom pattern was certainly suggestive of this disorder, from a legal viewpoint the behavioral health practitioner could be diagnosing a disease that would be considered within the realm of medical practice. This is because the “practitioner gave an opinion as to the origin or cause of the patient’s physical ailments” (Knapp & VandeCreek, 1981, p. 678). However, it would be perfectly appropriate for the behavioral health specialist to make a diagnosis with DSM 5 (American Psychiatric Association, 2013), such as psychological factors affecting physical condition, because the practitioner would not be diagnosing the physical etiology of the problem.

Another problem is the legal implications of making a physical diagnosis or suggesting one. The nonphysician (or the psychiatrist who has not done a physical workup) must be careful not to give a physical diagnosis that he or she is either unqualified or unprepared to make. When recording physical symptoms or possibly a physical diagnosis, I find it most prudent to state where the physical diagnosis originated (e.g., “migraine headache per the patient”; “per the medical record”; “per the referral”). One must also take care in stating the source of the physical diagnosis in the text of the evaluation report. I have often seen statements that suggested that the behavioral health practitioner was making physical diagnoses. The following is another example of inappropriately diagnosing a medical condition (as being psychophysiological) and initiating behavioral health treatment:

Although the chances of back pain being the result of a spinal tumor are rare (serious causes of back pain account for less than 1% of cases), the clinical impact is certainly significant when it occurs. Back pain is the presenting symptom in 90% of patients with spinal tumors.  In the case of Dr. Descartes, medical examination should have been required prior to initiating treatment.  Dr, Descartes’ judgment was clouded by his excitement about this new treatment approach, getting a patient that “fit” the concepts, the patient’s apparent good health, and wanting to be accepting of P.C.’s reluctance to “bother” with a medical evaluation.     

In my behavioral health practice, I require that a patient allow me to communicate with his or her physician throughout the course of treatment (of course, only about issues relevant to the behavioral health intervention).  If the patient will not grant a release for this type of multidisciplinary communication and collaboration, I will not accept him or her into treatment. I will discuss the importance of this issue throughout this section.

Interfering with Appropriate Medical Treatment

Beyond directly diagnosing and treating physical conditions, the behavioral health practitioner must take care not to interfere with appropriate medical treatment.  In the practice of behavioral health, the practitioner is often involved in the psychological or psychophysiological treatment of a physical problem. When the behavioral health treatment interferes or takes the place of appropriate medical treatment (without informed consent), it could be grounds for malpractice. There is a legal case history of nonphysician practitioners encouraging their patients to leave standard medical treatment and being held liable (see Cohen, 1979; Knapp & VandeCreek, 1981). Consider the following two examples:

These two cases present clear examples of a behavioral health specialist practicing medicine. This is not because reducing medications as the psychological techniques became more effective was an inappropriate goal, but because these treatment directives must be done by the primary physician on the basis of mutual consultation. Even more difficult decisions involve patients who are referred for treatment and are on as-needed (prn) medications. For example, the behavioral health practitioner might see a patient referred for psychophysiological treatment of his or her intractable chronic headaches who is on prn analgesic medication. Although there is no legal case history of whether a nonphysician health care practitioner can be held liable for encouraging a patient to reduce prn medications as treatment proceeds, the most prudent approach is to discuss this strategy with the physician and to document the results of this consultation.  The following is another example related to medications:

In this example, medication taper was the goal, but the therapist clearly interfered with the treatment plan by suggesting the patient could stop the Xanax prematurely.  Patients will often see the behavioral health practitioner much more frequently than their physician, even within the context of a multidisciplinary program.  Patients might assume that the behavioral health specialist has the same responsibility for medical management as the physician, especially if the treatment is being done in a medical setting.  The behavioral health practitioner must take care to clarify roles, answer questions about medications appropriately, and maintain close collaboration with the physician.  

Related to clarifying roles, the behavioral health practitioner must be careful to ensure that the patient does not mistake him or her for a physician. If this occurs, the practitioner may be held accountable for practicing medicine if a problem arises. In many medical centers, the likelihood of this occurring is increased by the “dress code” of the institution. Behavioral health specialists on both inpatient and outpatient services often wear traditional white lab coats. This can be confusing to patients - a confusion that can be readily ascertained by the nature of the patient’s questions. In keeping with informed-consent procedures, on initial contact, it is prudent to make a concise statement about the behavioral health specialist’s realm of expertise, which helps to avoid many problems in this area.

Complimentary and integrative medical therapies.  Physicians are increasingly dealing with liability issues related to complementary and alternative medicine (CAM) approaches (Cohen and Eisenberg, 2002; Weiger et al., 2002).  Due to the increasing popularity of CAM approaches, this might also be an area that will impact the behavioral health practitioner.  There are two issues that pose potential malpractice liability for the behavioral health practitioner: (1) suggesting a CAM intervention that interferes with the patient’s medical treatment and (2) referring the patient to a CAM practitioner that causes injury.  The second situation will be discussed under referral issues.

Complementary and alternative medicine treatments are becoming more and more popular but are often unregulated.  Treatments include such things as dietary regimens, dietary supplements, vitamins, herbs, acupuncture, massage, mind-body techniques, and exercise techniques.  Many behavioral health practitioners are familiar with CAM approaches and may recommend them for their patients.  If not done appropriately, there may be a risk for increased liability.  Consider the following example.

Although Dr. Remission was attempting to help the patient, she inadvertently recommended a treatment that would interfere with the patient’s chemotherapy.  St. John’s wort has been shown to significantly reduce the active metabolite of irinotecan and thereby decrease its effectiveness (See Weiger et al., 2002 for a review).  In fact, many supplements (vitamins, herbs, antioxidants) can negatively impact chemotherapy and radiation treatment for cancer. The review of Weiger et al. (2002) concludes:

• Supplements may alter blood levels of conventional medications through effects of metabolism

• Dietary changes (e.g. grapefruit, macrobiotic diets) may alter chemotherapy drug levels

• Although antioxidants may limit adverse effects of some medication, they may also diminish the medications’ anti-tumor efficacy

This is just one example relative to the treatment of a cancer patient and interference that could impact the medication efficacy.  There are also other areas in behavioral health practice in which interference might occur.   The behavioral health clinician must be very careful in recommending supplements or dietary changes and should do so only in close collaboration with the patient’s physician.  Communication with the physician should be appropriately documented.  Another issue arises when the practitioner becomes aware of a potentially problematic combination of treatments that he or she did not actually recommend.  For instance, in the previous example, the patient may have decided to start on the St. John’s wort on his own and then disclosed it to Dr. Remission without telling his oncologist.  Dr. Remission should encourage the patient to tell his oncologist about the herb and follow-up to ensure this was done.

Providing Actual Medical Treatment

I previously discussed the malpractice liability for making a medical diagnosis and then providing behavioral health treatment.  In that situation, medical treatment was not provided.  Another area of malpractice liability (and possibly criminal misconduct) is providing actual medical treatment.  In the case of the non-physician mental health provider, this most often involves medications.  In this section, I will present case examples of practicing medicine without a license related to directly providing medication prescriptions to patients.  In the section on failure to communicate, I will discuss medication issues while working collaboratively with a physician.   

The behavioral health practitioner might very well be practicing medicine without a license if he or she were to fill a prescription under a physician’s license, recommend directly to a patient to change the dose of medication, change how the medication is taken, or to stop a medication altogether. 

In these two examples, the second is certainly more extreme than the first and resulted in criminal prosecution.  In the first case, the social workers were clearly comfortable with their knowledge of psychotropic medications and may have even rationalized their behavior as acceptable.  There was a shortage of psychiatrists, the social workers spent more time with the patients, and their activity was being overseen by a psychiatrist (eventually).  The case represents the dangers in becoming too lackadaisical about one’s scope of practice especially when working with a physician who condones or even encourages such behavior.

FAILURE TO CONSULT, REFER, OR COMMUNICATE

This area of malpractice risk is closely associated with practicing medicine without a license. The behavioral health specialist is in a position of having increased responsibility for physical health. Malpractice issues can arise when this responsibility is managed in a negligent fashion not in keeping with the prevailing standard of care. 

The issue of behavioral health practitioners being involved with health and medical problems is being vigorously debated in state and federal legislative arenas. The concern (voiced primarily by medicine) is that these practitioners are nonmedical providers and therefore cannot accurately diagnose mental disorders, will misdiagnose physical conditions as psychological problems, will fail to recognize medical problems, and will fail to refer to physicians for needed medical care.  Some liability cases against nonphysician practitioners suggest this could be an area of liability risk for the behavioral health specialist. 

Failure to Consult

In the practice of behavioral health, one cannot expect to know, or be competent, in all areas of evaluation and treatment.  Therefore, consulting with colleagues is an important aspect of providing quality and ethical care.  This is an ethical guideline that is common across all mental health disciplines and is an accepted standard of care.  Liability for failure to consult can occur in two situations (1) an act of omission in which the behavioral health practitioner should obtain consultation but does not and the patient is harmed as a result; (2) the practitioner chooses an inappropriate consultant, one who has little or no expertise in the area of concern.

There is a great deal of literature about the pre-surgical psychological risk factors for a poor outcome to a bariatric procedure as well as appropriate components of a pre-surgical screening (See Collazo-Clavell, 2006, for a review; Jumbe et al., 2017). Risk factors include such things as the presence of an psychological or personality diagnosis, a pattern of binge eating, an untreated depressive disorder, alcohol or substance abuse, and non-compliance with treatments.  In cases where any of these factors are identified, various treatments will often be recommended prior to considering the surgery.  Dr. Bono did not address these issues or recommend the surgery be postponed pending appropriate intervention.  He did not seek consultation with someone competent in the area and his evaluation fell below the standard of care.  It should be noted that behavioral health practitioners are not expected to be able to predict the future. If a completely appropriate evaluation had been completed by someone experienced with this patient population, and the patient still did poorly after being “cleared”, there would be no liability.    

The second liability risk is when a practitioner chooses a consultant that has little or no expertise in the area of concern.  Ethical guidelines and the standard of care are nicely summarized by the NASW code (2.05b):  “Social workers should keep themselves informed about colleagues’ areas of expertise and competencies.  Social workers should seek consultation only from colleagues who have demonstrated knowledge, expertise, and competence related to the subject of the consultation.”

In the previous example of Dr. Bono, if he had sought consultation with one of his colleagues who was also a pain management specialist, he was still potentially acting below the standard of care.  If he simply did not have any consultation resources relative to pre-surgery screening for bariatric procedures he has two choices:  The first is to become competent through a review of the literature, reading up-to-date texts on the subject, and continuing education.  The second option is to refuse to do the evaluation and help the surgeon and patient find someone who has expertise in that area.    

Failure to Refer

Liability for failure to refer can occur in two ways, similar to failure to consult.  First, malpractice law has established that there is liability when a professional does not refer a patient to a specialist for consultation when it is clearly appropriate as determined by the prevailing standard of care.  Second, the behavioral health specialist should select referral sources that have competency and expertise in their area of practice. 

In the case of Russo v. Ascher (1998; discussed in Stromberg and Dellinger, 1993), a psychiatrist failed to rule out a physical cause for the patient’s symptoms. The patient was involved in 11 years of psychotherapy before the condition was traced to a brain tumor.  The psychiatrist was found negligent for not having ruled out a serious physical etiology for the presenting symptoms. In this case there was a failure to refer the patient for appropriate medical evaluation.

In another case (Kogensparger v. Athens Mental Health Center, 1989, as reported in Reamer, 2015), a mental health center had been treating a patient for “schizophrenia” even though his complaints included behavioral symptoms and discomfort in his head.  After three years of inpatient treatment, the patient had a grand mal seizure and died one week later.  An autopsy revealed a slow growing brain tumor that had likely been developing for years.  In the liability case the mental health center was found negligent for failure to refer for appropriate medical evaluation.

These examples can easily be extrapolated to the practice of behavioral health. If the behavioral health practitioner is treating a physical problem, it is imperative that a physician is also involved in the case, and open communication is important to discuss problems and progress. For instance, the patient may be seeing the behavioral health practitioner much more frequently than the physician. In this situation, the behavioral health practitioner may be the first to discover such things as side effects to medications or occurrence of additional physical symptoms. On the basis of the cases reviewed previously, the behavioral health practitioner may have a duty to encourage the patient to return for medical evaluation or to communicate these concerns and findings to the physician. These actions must be carefully documented which is, of course, in keeping with good clinical practice.

Just as it is important to make a referral when appropriate, it is also important to know your referral sources.  As discussed by Eisenberg and Kaptchuk (2002, p. 600), “Referrals can generate direct liability (the decision to refer was itself considered negligent, resulting in patient injury) and vicarious liability (the referring physician becomes legally responsible for the treating practitioner’s negligence)”.  This is unlikely to be a problem if the referral source is licensed, in good standing with the relevant state board, and appropriately competent to address the referral question.   When referring to practitioners outside traditional healthcare practice (e.g. complementary and alternative medicine), the behavioral health specialist should take extra care (See Eisenberg and Kaptchuk, 2002 for a review).  For instance, Eisenberg and Kaptchuk (2002) point out that a referral to a CAM provider could be considered a “negligent” decision if it delays or eliminates the patient’s opportunity to obtain necessary biomedical treatment.  One can imagine a scenario in which a behavioral health practitioner refers a patient to a naturopath (at the patient’s request) without making sure that biomedical evaluation had been completed.

Failure to Communicate

Negligent failure to communicate important information about a patient’s status can occur relative to (1) communicating with a public agency and (2) communicating important information to another treating professional.  The former of these situations generally involves failure to report a danger to self or others (e.g. child or elder abuse, homicidality) and will be discussed in more detail in a subsequent section.

Failure to communicate important information to another treating professional is illustrated in the following legal case: A psychologist failed to conduct an adequate mental status examination of the patient and then failed to adequately report any results of the evaluation to the psychiatrist also working on the case. As a result, the psychiatrist prescribed medication that “injured” the patient (Chambers v. Ingram, 1988). Stromberg and Dellinger (1993) discussed that “this case represents a good lesson in how psychologists, although they cannot usually prescribe medications, may have liability relating to the patient’s use of medications” (p. 7).

In the following example, failure to communicate the results of the preparation for surgery evaluation to the surgeon might be considered negligent since significant risks to the patient were identified.  The following surgery preparation evaluation was completed by the author (only excerpts are included).  In this case, the patient was referred by the patient’s surgeon for a single session of surgery preparation.  The surgery was being done on an elective basis to help with pain and function.  It was scheduled for the following week.

In this case, the patient had signed a release of confidentiality to speak with his surgeon (this is the only way I would see such a patient).  The case was discussed with the surgeon and the surgery was postponed until the identified issues could be successfully addressed.

MEDICATION ISSUES

The area of psychopharmacology has become of great interest to more and more mental health professionals.  As such, non-physician mental health practitioners have become more knowledgeable, comfortable and assertive in working with the physicians treating their patients and making medication recommendations.  Some research indicates that psychologists have been involved in the process of prescribing psychotropic medications for quite some time (VandenBos and Wiliams, 2000).  It is now not uncommon to see a psychotherapist working in close collaboration with a non-psychiatrist physician and making medication recommendations to the physician for their mutual patient.  The issue of whether it is appropriate for a behavioral health practitioner to discuss medications with a patient, and even make recommendations to the physician, has been a hotly debated topic.  Relative to psychologists, guidelines generally stated that the practitioner can (1) suggest to a physician a particular medication to be prescribed, (2) engage in a collegial discussion with the patient’s physician regarding the medication for the condition being treated, (3) assist in monitor the patient’s response to the medication including side-effects (California Department of Consumer Affairs, Board of Psychology, “Statement on Medication). This involvement with the patient’s medication is to be done in “close collaboration” with the patient’s physician.

The behavioral health practitioner often has a critical role in medication management (psychotropic and otherwise) for several reasons.  One of the most important is that the frequency and duration of time the behavioral health practitioner spends with the patient will far exceed the average eight-minute office visit spent with the physician.  As discussed by Preston and Ebert (1999) there are several issues that can arise:

The following are a few examples that I have experienced in the practice of pain management that required communication and collaboration with the patient’s physician:

In all these cases, the behavioral health practitioner may have been liable if there was a failure to communicate or address the medication issues. On the basis of case law involving other nonphysician health care professionals being sued for practicing medicine without a license, certain recommendations for behavioral health practice can be given:

SUICIDE AND MALPRACTICE RISK

Whenever a suicidal patient presents to a mental health professional, action must be taken to prevent self-harm.  If a suicide risk evaluation falls below the standard of care (failure to diagnose) or if suicidal threats are not taken seriously (duty to prevent harm) the practitioner may be liable in a malpractice action stemming from the patient’s suicide (Bernstein & Hartsell, 2004; Deardorff et. al., 1984; Packman & Smith, 2006a, 2006b; Reamer, 2015).  Malpractice cases involving suicides by individuals being treated on an outpatient basis are on the rise (Bongar, Maris, Berman & Litman, 1998; Jobes & Berman, 1993; Packman & Smith, 2006a).  According to Baerger (2001), 20% of psychologists and 50% of psychiatrists will lose a patient to suicide during their careers.  The largest number of lawsuits brought against psychiatrists, and the largest monetary settlements, are related to post-suicide claims of negligence (Baerger, 2001).  Among psychologists insured by APA’s Insurance Trust, patient suicide ranked sixth among claim categories but second in terms of percentage of total costs (Baerger, 2001).

The suicidal patient may present a special risk for the behavioral health practitioner working in a medical setting. Unlike traditional outpatient practice, behavioral health practitioners are more likely to evaluate suicidal patients in the emergency room and as medical inpatients. Thus, the evaluation and diagnosis of suicidality must be done rapidly and, typically, outside the context of a longer-term treatment relationship. The behavioral health practitioner must be familiar with the assessment of the suicidal patient and precautionary measures that are appropriate (See Bongar, 2002; Simon & Hales, 2006, for review).  An excellent resource is the Basic Suicide Assessment Five Step Evaluation (B-SAFE) developed by the Joint Commission on Accreditation of Healthcare Organization (Jacobs & Brewer, 2004; JCAHO, 2007). When a therapist follows accepted evaluation and diagnostic procedures and these do not reveal suicidality in a patient who subsequently commits suicide, there are no grounds for malpractice (Baker v. United States, 1964; Baerger, 2001; Hogan, 1979 Porter v. Maunnangi, 1988). As concluded by the court in a recent case, “a doctor is not a . . . guarantor of the correctness of his diagnosis; the requirement is [merely] that he use proper care and skill. . . . The question is not whether the physician made a mistake in diagnosis, but rather whether he failed to conform to the accepted standard of care” (Schuster v. Aztenberg, 1988; Stromberg & Dellinger, 1993). 

In addressing the process of evaluating and managing the suicidal patient, the reader is directed to three excellent articles published as a special section in Professional Psychology: Research and Practice (Joiner, Walker, Rudd & Jobes, 1999; Kleepies, Deleppo, Gallagher & Niles, 1999; Rudd, Joiner, Jobes & King, 1999 and well as the Suicide Prevention courses offered by BehavioralHealthCE.com); To protect oneself against malpractice or liability claim, the behavioral health practitioner should be familiar with the prevailing standard of care for evaluation and management of these patients. It is beyond the scope of this chapter to present detailed suicide risk management strategies, and these have been discussed elsewhere as previously referenced.  Packman and Smith (2006b) outline these as follows:

If a practitioner determines a patient to be suicidal, precautionary measures such as involuntary or voluntary commitment for observation may have to be invoked; although, in some cases, using sound clinical judgment, the suicidal patient may be most appropriately managed on an outpatient basis. If the standard of care is commensurate with community standards and the treatment decision is in the best interests of the patient, there would be no grounds for negligence (see Bongar, Maris, Berman, & Litman, 1992, 1998 for a review). If a patient is already in the hospital on a medical-surgical unit, other special issues arise. These include determining specific suicide precautions that must be taken and making sure the staff carries them out.

Determination of the suicide precautions that must be taken is guided by a thorough assessment and evaluation of the patient. As discussed in the B-SAFE Guidelines (JCAHO, 2007 - 2018), the monitoring of a suicidal patient includes a range of frequency of observation from constant (1:1) to every 30 minutes, as well as addressing safety needs related to the physical environment and access to methods of self-injury.  The guidelines specifically state that, “suicidal patients on medical units are in less controlled, therefore, higher-risk physical environments; safety is increased by providing closer observation, often 1:1 with a sitter” (Jacobs, 2007, page 13).  Suicide precautions must be specified precisely in written form either in the progress notes or in the doctor’s orders section of the chart (depending on hospital guidelines). The behavioral health practitioner must keep in mind that the staff is a nonpsychiatric one and, hence, they are generally not accustomed to implementing such procedures. The practitioner must also be prepared to deal with the staff’s emotional response to the suicidal patient. On medical-surgical units, where saving life is the primary goal, the staff will often express anger and frustration toward a suicidal patient in indirect ways (e.g., not administering pain medications on time or not speaking with the patient).

In making sure that the staff carries out the suicide precaution orders, the behavioral health specialist would be wise to initiate a staff intervention aimed at education and open communication about exactly what precautions are being taken, who is responsible for carrying them out, and what to do if problems arise. Of course, all information should be documented in the medical or nursing record. One must be particularly careful that adequate communication occurs across different nursing shifts. Where this is done inadequately, negligent professional behavior may be found if litigation were to occur.  The following are examples of suicide precautions to be used on an inpatient medical unit:

An excellent method for developing critical thinking relative to practice issues is to be aware of how one’s actions, or lack thereof, might stand up to legal cross examination in the event of a liability claim (either malpractice or licensing board complaint).  This approach can be applied to any practice issue or decision that confronts the behavioral health practitioner.  An example of actual guidelines used by lawyers for cross-examining assessment of suicide risk can be found in the following example (adapted from Campbell and Lorandos, 2001).  It should also be remembered that when a practitioner’s behavior is measured against the standard of care, it is primarily the clinical record that will be examined.  The practitioner’s interview or cross-examination will only carry weight to the degree that the answers are corroborated in the record.  As such, one can conceptualize the liability process as weighing the patient’s word against the clinical record (Reamer, 2015; Zur, 2005).  This underscores the importance of documentation. 

The following cross-examination references the article “Scientizing and routinizing the assessment of suicidality in outpatient practice” (Joiner et al., 1999) in which seven domains of suicide risk are delineated: previous suicidal behavior, the nature of current suicidal symptoms, precipitant stressors, general symptomatic presentation including hopelessness, impulsivity and self-control, other predispositions, and protective factors.   This example cross-examination is adapted from a resource text for attorneys, Cross Examining Experts in the Behavioral Sciences (Campbell & Lorandos, 2001, pages 10-88 to 10-91). Although a current cross-examination of this type would reference more recent work by Joiner and others, the process would be the same.

This structure of questioning is continued for all of the important risk factors for suicide including stressful life events, diagnostic status, living situation, employment status, health status, presence of hopelessness, chaotic family history, impulsivity, substance use, etc.

DUTY TO PROTECT

Increasingly, mental health professionals are being held responsible for protecting the public from violent acts of their patients. The duty-to-protect doctrine received great publicity in the case of Tarasoff. Regents of University of California (1976), a case with which all mental health professionals should be familiar (see DeMatteo, 2005; Gostin, 2002; Kamenar, 1984; Reamer, 2015; VandeCreek and Knapp, 2002).  In the Tarasoff decision (1976) the California Supreme Court stated that when “a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger” (Tarasoff 551 P.2d 330-50 [1976])  The court’s ruling means that although there may be no special relationship between a therapist and victim, the relationship between a therapist and patient is sufficient to impose special legal responsibility on the therapist for the patient’s actions if the therapist knows the patient poses a serious threat or the therapist negligently fails to predict such dangerousness (Southard & Gross, 1983). The court’s ruling also stated that where a danger to others exists, the confidential doctor-patient relationship must yield.

The Tarasoff ruling was only binding in California but duty to protect doctrine has been adopted by a majority of states (DeMatteo, 2005; Reisner, Slobogin and Rai, 2004). Tarasoff has been modified in subsequent cases.  In Thompson v. County of Alameda (614 P.2d 728 [Cal. 1980]) the California Supreme Court held  that Tarasoff only applied when there was a specific threat  against a clearly identifiable victim.  The  Hedland v. Superior Court (669 P.2d 41 [Cal.1983]) ruling held that a therapist could be liable if the victim was foreseeable even if not readily identifiable.  Most states have followed the specific threat against a readily identifiable victim but some states have rejected the Tarasoff doctrine altogether (e.g. Virginia and Washington, See DeMatteo 2005 for a review).

The Ewing v. Goldstein appeal case (15 Cal. Rptr. 3d 864 [Cal. Ct. App. 2004]) heard by the California Court of Appeals held that a communication from a patient’s family member constitutes “patient communication” that can potentially trigger a therapist’s duty to protect (See DeMatteo, 2005 for a review).  The decision overturned a lower court decision that the therapist did not have a duty to warn since there was no direct communication from the patient of Dr. Goldstein (rather, it was from the patient’s father).  The appeals court refused to address the issue of whether communication from another third party could trigger a duty to protect.  As discussed by DeMatteo (2005), “therapists must still determine whether a patient’s threat is credible, serious, and directed at a reasonably identifiable person, but they may need to make these often-difficult determinations based on second-hand information” (p. 20). DeMatteo (2005) states that the Ewing decision is only binding in California but may be adopted by courts in other jurisdictions.  It should be noted that a California bill (AB 733) went into effect in 2007 and was originally designed to nullify the Ewing v. Goldstein effect on Tarasoff.  However, as discussed by Faltz (2006) the version of AB 733 that was ultimately passed “does not change the effect of the Ewing decision” (page 31).   Psychologists should continue to act in accordance with the Ewing decision.   

Since Tarasoff and Ewing, there has been much confusion in the mental health professions as to the specific implications of these rulings. Relative to Tarasoff, Schindler (1976) noted that the courts offered no practical guidelines to follow. Southard and Gross (1983) and others (Beigler, 1984; Kamenar, 1984; Monahan, 1993; Quinn, 1984; Reamer, 2015; VandeCreek & Knapp, 2001; Wettstein, 1984) provide a thorough discussion of the misunderstanding surrounding the Tarasoff decision while articulating the responsibilities of therapists related to the duty to protect.  Briefly, this case is often cited as “duty to warn,” but the actual court decision was based on a “duty to care” or to protect. The courts did not rule that warning potential victims was a reasonable course of action in all cases but rather that the therapist is to take “reasonable care” to protect the potential victim (Knapp, 1980; Southard & Gross, 1983). Protective action may involve many different possibilities.

There is much concern that the courts are extending the “duty to protect” related to the prediction of dangerousness, beyond what the scientific level of the profession is capable of delivering (DeMatteo, 2005; Goodstein, 1985; Gostin, 2002). A therapist’s best defense is careful documentation, clinical reasoning, and consultation. Of course, these behaviors are all consistent with sound clinical practice.

The behavioral health practitioner working in a hospital setting has a difficult task related to assessment and management of homicidality. He or she is most likely to be confronted with a Tarasoff situation while consulting to the emergency room or in the assessment of injured patients. Questions regarding perceived causation of the injury and possible motives for revenge are important. However, the behavioral health practitioner will usually not have had a previous relationship with the patient, thus adequate assessment is often difficult. In these situations, hospitalization may be used more frequently.

Three general principles can be gleaned from Tarasoff and subsequent cases (Knapp and VandeCreek, 2001; VandeCreek and Stout, 1993). These include (1) foreseeability of harm, (2) identifiability of the victim, and (3) the ability of the therapist to protect the potential victim. First, the courts have not found liability when therapists could not have foreseen the danger. Second, the courts have generally found that there is no liability if the potential victim is not identifiable. Third, the courts have generally found that the therapist need only take fairly easy and reasonable steps to warn the potential victim, to fulfill the duty. Thus, the guidelines presented by Southard and Gross (1982; Figure 7.1), with the modification taking into account the Ewing decision, are still applicable.

DUTY TO PROTECT AIDS AND HIV POSITIVE PATIENTS

The acquired immune deficiency syndrome (AIDS) is caused by the human immunodeficiency virus (HIV). AIDS is an epidemic and presents a special issue related to the duty to protect within the context of a psychotherapeutic relationship. Specifically, what is the psychologist to do if a patient discloses that he or she is HIV positive and also has a sexual or needle-sharing partner who is not aware of the infection? This issue may be more likely to confront clinical health psychologists because of their closer association with the medically ill.

The question is whether the situation above entails a necessary invocation of the Tarasoff duty to protect. The Tarasoff decision was based on long-standing precedents involving physicians’ duty to warn third persons about infectious diseases (see Gostin, 2002; Knapp & VandeCreek, 2001; Knapp & VandeCreek, 1990; Totten, Lamb, & Reeder, 1990, for review). As such, legal precedent for a duty to warn in HIV cases antedates the Tarasoff decision. Still, one is not expected to invoke the duty to warn in every case of a patient disclosing HIV-positive status and also having uninformed persons within his or her psychosocial environment. The breaking of confidentiality in fulfilling the duty to warn must be done with caution after careful consideration of many factors, just as in Tarasoff cases.

Legal guidelines for the duty to protect in HIV positive cases have been developed in many states. It is beyond the scope of this discussion to review each state’s guidelines, if they actually exist in a particular state. In addition, these guidelines are often changing rapidly. Knapp and VandeCreek (1990; 2001) provided a useful presentation of these issues as well as general guidelines for the duty to protect in HIV-positive cases. They take into account such things as the three general Tarasoff guidelines as applied to the HIV positive case, how to assess the level of risk the HIV positive patient is posing, and clinical management of the HIV dangerous patient. They conclude that psychologists should be aware of state law, consult with colleagues, consult with legal authorities, and document the decision-making process, to deal with these cases in a sound clinical and legal fashion.  Other excellent resources include APA Public Interest Directorate, Major HIV/AIDS Topics and Issues, Reamer (1991; 2015), Dickson (2001), and Woods, Marks, & Dilley (1990). 

CONFIDENTIALITY

Confidentiality is a standard of professional conduct that requires the practitioner not to discuss or disclose information about a patient to anyone.  Communication between patient and psychotherapist within the context of a professional relationship is considered confidential and this has been established in the Ethics Code, legal statutes, and case law (American Psychological Association, 2002; Bersoff, 1995; Koocher and Keith-Spiegel, 2016; Reamer, 2015). As with traditional psychological treatment, the behavioral health practitioner is mandated to breach confidentiality under special circumstances (e.g., endangerment to others, child abuse, elder abuse, or endangerment to self). However, inadvertent breaches of confidentiality can occur (e.g. not securing records, cell phone conversations, internet communication, etc).  Where there is an inappropriate breach of confidentiality, it is grounds for malpractice (Berry v. Moench, 1958; Furniss v. Fitchett, 1958; See also Koocher and Keith-Spiegel, 2016; Reamer, 2015 for a review).  As discussed previously, case law related to the management of confidential patient information is being shaped by the HIPAA regulations.

The practice of behavioral health can present special problems related to confidentiality. One issue has to do with how much information related to the patient’s psychological status, history, and condition should be disclosed to the referral source, which is often the primary-care physician with whom the clinician is working closely in the management of the patient.  In many multidisciplinary practices, release of confidentiality for all treating professionals is required before a patient will be accepted into the treatment.  In some cases, if a patient is unwilling to give consent to all practitioners to share and discuss information, he or she may not be accepted into treatment.  This is due to necessity of multidisciplinary communication for the treatment to be effective.  Even the sole clinical health psychologist might require a confidentiality release to coordinate care with the patient’s physician prior to accepting a case for treatment.     

Even with HIPAA, the patient file in large medical centers is relatively open to other professionals on the staff.  This, of course, presents problems for confidentiality of psychological services. Many departments of psychiatry and behavioral sciences maintain separate records, a policy that provides more control over access. One procedure that can be used for responding to a referral involves writing a detailed intake evaluation for your own records and then excerpting relevant parts to comprise a more general evaluation to be sent back to the referral source. In most cases, this general report is also sent to the medical chart. The evaluation that is sent to the referral source is more symptom focused and treatment plan oriented. It does not include a detailed family history, particularly sensitive information, or a DSM-IV diagnosis. This practice is in keeping with the ethical standards of relevant professional groups:

• Psychologists include in written and oral reports and consultation, only information germane to the purpose for which the communication is made (APA Ethical Standard 4.04).

• When confidential information is released to a third party, the clinical social worker will ensure that the information divulged is limited to the minimum amount required to accomplish the purpose for which the release is being made (CSWA Ethical Standard IIIb)

• In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed (NASW Ethical Standard 1.07c).

• When circumstances require the disclosure of confidential information, only essential information is revealed (ACA Ethical Standard B.2.d).

• Information may be shared only to the extent necessary to achieve the purpose of the consultation (AAMFT Ethical Standard 2.6).

Psychological material even of this general nature should be released only with the patient’s knowledge and consent. In many large health care systems, complete confidentiality cannot be promised, and the limits of confidentiality must be outlined to the patient in the informed-consent procedure. 

Inpatient psychological treatment of medical patients presents problems with confidentiality similar to those above, as well as others. A major problem is how much information to document in the unit chart, which is perhaps more widely read than clinic charts. It is most prudent to follow the guidelines presented above in recording the most general and necessary information in the medical chart. It should be kept in mind that the psychological-behavioral information recorded in the unit chart can often affect how the staff interacts with the patient. When there is information particularly relevant to the treatment of the patient but not appropriate to put in the medical chart, conveying the information verbally to the necessary health care professionals is indicated. However, the fact that the patient’s care was discussed should be documented in the medical chart.

Problems with confidentiality also occur when there is a release for medical information to an outside source and psychological treatment progress notes or evaluations have been recorded in the medical chart (either inpatient or outpatient). General medical releases of information forms are not sufficient to release psychological information, even when this information appears in the medical record. This may appear obvious, but in large medical systems, this issue is often overlooked. If the standard medical-information release does not specify psychological information, it is important that the medical records department take appropriate precautions (such as “blacking out” psychological progress notes when copying medical records). It may ultimately be the behavioral health practitioner’s responsibility to be sure this is done.

PSYCHOLOGICAL EVALUATION

Psychological evaluation has been an area in which psychologists and others have been more likely to get sued for malpractice, and this pattern has continued (VandeCreek & Stout, 1993; Wright, 1981; Montgomery et al., 1999; Reamer, 2015). The typical scenario is that the recommendation resulting from the psychological evaluation causes the patient-client to initiate a malpractice complaint concerning misuse of the test or test data. Wright (1981) concluded that in “most instances the filing of the grievance is a retaliatory expression of disappointment because something that the client wanted was denied or the client felt himself or herself to have been presented unfairly” (p. 1490). Stromberg and Dellinger (1993) discussed that the courts have generally not been sympathetic to these suits because they understand that they are often of a retaliatory nature. Still, even the process of being faced with a malpractice action or licensing board complaint can be traumatic for the practitioner, and everything reasonable should be done to avoid it.

Behavioral health specialists, practicing within the limits of their specialty, would probably not be involved in areas of psychological evaluation that have more frequently resulted in malpractice litigation. These areas include evaluations for employment decisions (hiring, firing, and promotion), child custody issues, and probation. However, behavioral health specialists are involved in psychological evaluations related to medical treatment or disability decision making which may have increased malpractice risks (e.g., neuropsychological assessment, evaluation for inpatient pain programs, workers’ compensation assessments related to occupational injury, or evaluation for some type of surgery such as spine surgery, penile prosthesis, organ transplantation, gastric bypass, etc.).  For instance, if a patient is denied access to a treatment program or surgery or is given the opportunity for an alternative treatment that is more appropriate but not desired by the patient, a malpractice suit could be precipitated.  In initiating the suit, the patient can deny the validity of the findings and express disagreement with the recommendation. Consider the following case example:

Of course, behavioral health practitioners should not formulate recommendations resulting from evaluations based on attempting to avoid a malpractice suit. However, in the preceding example, the professionals made several errors in handling the informed consent, which may have contributed to the patient’s ultimate legal action. In general, the ways to minimize the risk of malpractice stem from what would be considered sound clinical practice, regardless of the malpractice issues:

Although the recommendations from psychological evaluations are not always in keeping with patient desires, these guidelines can help reduce the risk of “retaliatory” or successful malpractice actions without having to equivocate evaluation results to the point of uselessness.

SUPERVISION OF TRAINEES

The behavioral health specialist working in a supervisory capacity must be aware of increased malpractice liability. As the area of behavioral health expands, increasing numbers of practitioners will be seeking supervision. In general, clinical work, ethical issues related to supervision have been articulated in the literature as well as in the relevant ethical principles (Falender & Shafraske, 2016; Koocher & Keith-Spiegel, 2016; Reamer, 2015). It is essential for supervisors to be aware of ethical and legal aspects of supervision beyond their theoretical orientation and teaching skills (Falender & Shafraske, 2016; Harrar, VandeCreek, & Knapp, 1990). Certainly, one of the most important principles is that the behavioral health supervisor be competent to supervise in the specific area of practice. The following discussion assumes such a competence. Also, the supervisor is expected to know the skill level of the supervisee and gauge assignment of tasks and supervision accordingly (Falender & Shafraske, 2016; VandeCreek & Stout, 1993). Certainly, the supervisee should possess the appropriate educational background and personal characteristics relevant to general practice prior to being given more responsibility and independence in a specialized area such as behavioral health. Harrar et al. (1990) summarized the duties and responsibilities of the supervisor as follows and these still apply:

• The supervisor should have sufficient knowledge of each patient to be able to develop and monitor effective treatment plans and countersign written reports.

• The supervisor should be available for emergency consultation and direct contact with patients.

• The supervisor should not supervise more trainees than can be responsibly managed.

Conceptually, the most important thing for the supervisor to bear in mind is that “the relationship of an assistant to a licensed professional is, legally, akin to an ‘extension’ of the professional himself” (Cohen, 1979, p. 237). Although, both parties must understand that the trainee should not function so that the public would be led to believe that he or she is a fully licensed professional or expert specialist if that is not the case.  Another issue is that the amount of supervision must be based on the needs of the supervisee and the patient (Cohen, 1979; Falender & Shafraaske, 2016; Pope, 1990). The supervisor is frequently confronted with this issue in training institutions. As Pope (1990; 2016) pointed out, it is important that the needs of the institution or the training rotations do not supersede those of the patient. Setting up a structured schedule of supervision is reasonable, and commonly practiced, but it should be flexible enough to accommodate clinical issues or problems as they arise. In addition, the needs of the patient and the supervisee must be constantly monitored and addressed.

Related to schedules of supervision, a record of the supervisory activity should be kept. This is most easily done in the patient’s chart and need not be done at every supervisory session. Rather, the supervisor should periodically document that there is agreement with the supervisee’s diagnostic formulation and treatment plan. This guideline should also be followed if the trainee is doing inpatient work and charting in the medical record. In fact, most medical facilities require the supervisor to countersign all charted information.

The recommendations listed above afford increased legal protection for the supervisee as well as the supervisor. Although the supervisory relationship creates supervisor liability for the professional behavior of his or her trainees, the supervisee is not totally absolved of responsibility in malpractice action. Thus, documenting supervision times and following the previously suggested guidelines offer protection of both parties and provide for more high-quality supervision. It should always be kept in mind that, “courts have generally followed the principle ‘What has not been written has not been done’ ” (Harrar et al, 1990, p. 38).

SEXUAL VICTIMIZATION AND MALPRACTICE

Although sexual misconduct is not unique to the area of behavioral health practice, no discussion of ethical and malpractice issues would be complete without addressing this area. Sexual misconduct always accounts for a high percentage of malpractice claims and licensing board complaints (Pope & Vasquez, 2016; Reamer, 2015).   It accounts for the largest costs in malpractice expenses and is generally excluded from coverage in most malpractice insurance policies. As discussed by Belar and Deardorff (2008), clinical health psychologists (and any behavioral health practitioner) may be more often associated with other disciplines (e.g. Medicine), which have different ethical and legal guidelines on sexual relationships with patients and ex-patients. As Stromberg and Dellinger (1993) discussed, “one court explained that therapist-patient sex incurs liability while that sex between lawyer and client, minister and parishioner might not, because only the first professional group offers ‘a course of treatment and counseling predicated upon handling the transference phenomenon’ (Simmons v. United States, 1986; Stromberg & Dellinger, 1993, p. 8). This court decision makes it clear that it is important to not be influenced by guidelines for behavior of other disciplines.

Other important court decisions give further instruction in this area (See Reamer, 2015 for a review). First, the initial consent of the patient to a sexual relationship will not be a defense against a later malpractice claim. Second, the courts have generally not accepted the argument that the sexual relationship was consensual.  Third, even in the case of sex with a former patient, the courts do not easily accept the view that the therapy relationship has ended. In fact, many malpractice cases involve patients’ claims that they were harmed by the sexual relationship that started after treatment termination (Reamer, 2015).  All current mental health professional ethical standards provide guidelines in this area that are in keeping with many state laws.

Touching, Nudity and Medical Procedures

As discussed by Belar and Deardorff (2008, p. 131), “When working with medical-surgical patients, the clinical health psychologist is likely to encounter special boundary issues that are not as salient in traditional outpatient services.”

The issue of touching, nudity and medical procedures may be more relevant to the behavioral health specialist than in other areas of mental health practice.   Behavioral health practitioners may find themselves in situations not typical of the usual psychotherapy setting (Belar and Deardorff, 2008).  Consider the following examples:

• The behavioral health specialist was completing rounds with the medical team.  As part of the rounds, the physician examined patients which required them to partially disrobe

• A patient being seen on an inpatient basis was in a great deal of pain and suffering.  She grabs the hand of the behavioral health specialist while they are talking.   She seems to relax as he holds her hand.

• The behavioral health practitioner provides biofeedback training as part of his treatment.  He is treating a much younger female patient using EMG biofeedback training for mid and upper back pain. To place the electrodes she must unbutton her blouse and expose her mid to upper back.

Although most studies suggest that most therapists touch their clients in a non-sexual manner, the issue of touching patients as part of the psychotherapeutic relationship is a hotly debated issue.  Viewpoints on non-erotic touch as being therapeutic ranges from traditional psychotherapy ideologies which dictate that any touch beyond a handshake is contraindicated to treatments such as Reichian Therapy which utilizes a body-oriented approach to healing (see Zur and Nordmarken, 2009, for a review).  It should be noted that none of the ethical codes of the major mental health organizations prohibit appropriate touch (e.g. APA, NASW, ACA, AAMFT, CASW).

The issue of touch (and partial nudity) within a risk management and malpractice discussion involves situations in which a behavioral health practitioner engages in non-erotic touch (e.g. handshake, handholding, hug, applying electrodes for biofeedback) or is faced with partial nudity as part of treatment (e.g. biofeedback, in the hospital) and the patient interprets it as erotic.  As discussed by Zur and Nordmarken (2009).

Clients, sometimes independent of therapists’ intentions, construct the meaning of touch.  For example, light touch on the arm by a therapist meaning to be supportive and affirming, or it may be perceived as hostile, intrusive, controlling and disrespectful….A therapist’s hug, meant to be supportive, may be experienced as affirming and calming, or as overwhelming, intrusive or as sexual harassment.

As discussed by Zur (2007), the meaning of touch can only be understood within the context of the patient, the treatment relationship, and the treatment setting.  The research on touch in psychotherapy may help guide the behavioral health therapist.  In general, the longer the therapeutic relationship, the better the therapist can understand how the client/patient might perceive touch and decide to use it or not.  Also, non-erotic touch is more likely to be misperceived as erotic or abusive if the patient suffers from a borderline personality disorder or other severe condition.  Lastly, the issue of touch must be understood from the patient’s perspective especially if the behavioral health practitioner is working in a medical setting.  If the behavioral health practitioner is perceived as more of a healthcare provider (similar to a physician), than non-erotic touch that is meant to be supportive may be misconstrued as erotic.  This is simply due to the fact that most physicians and other healthcare providers (at least in Western Medicine), do not engage in such actions.  For them, touch is only for biomedical reasons.

Behavioral health interventions are often short term (relative to psychotherapy), giving the practitioner less time to judge personality factors that may impact how the patient perceives touch.  If the behavioral health practitioner is working is a medical setting, the patient may have different expectations about touch relative to other situations.  Given these factors, the use of non-erotic touch by the behavioral health practitioner should be done only after taking into account all important factors (e.g. the setting, the patient, the treatment relationship, etc.).

BILLING, COLLECTION, AND FINANCIAL ISSUES

Countersuits related to fee collection represent an area of increased malpractice risk (Bennett, Bryant, VandenBos & Greenwood, 1990; Reamer, 2015).  Behavioral health practitioners can avoid many problems in this area by making clear arrangements with patients in advance (Bernstein & Hartsell, 2004). This should be done in writing as part of the informed-consent process. In their article entitled, “Legal and Ethical Issues in Billing Patients and Collecting Fees,” Knapp et al. (1993, 2013) discussed guidelines for effectively managing this aspect of clinical practice. Their guidelines will be summarized here.

First, the behavioral health practitioner should keep in mind that he or she is “under no obligation to accept all patients who request service” and that “psychologists may refuse to accept any patient for any reason, including the perception that the patient is unable or unwilling to pay for services” (Knapp & VandeCreek, 1993, p. 25). Many ethical principles encourage practitioners to contribute a portion of their professional time for little or no compensation, and this might include seeing patients on a reduced or no-fee basis. This is a choice to be made by the practitioner. In certain cases, deciding not to accept a patient into one’s practice for the above reasons may actually avoid anti-therapeutic problems, which could occur if treatment were to ensue.

Second, the behavioral health practitioner should use a written informed consent procedure that includes financial information among other things. The form should include financial information as well as other information such as description of treatment, cancellation policy, limits of confidentiality, duty to warn, emergency contact information, consent to treatment, among other things.  This is in keeping with various ethical standards and legal suggestions (Bernstein & Hartsell, 2004; Stromberg & Dellinger, 1993; VandeCreek & Stout, 1993).  Financial information to be addressed in the form should include fees, insurance billing, notification that insurance may not cover all of the charges, expected payment schedules, interest charges on balances, and collection procedures. Not allowing the bills to accumulate can help avoid problems at a later date. If an account is turned over to collection, the behavioral health practitioner must first give the patient notification and opportunity to make restitution.

Obtaining informed consent related to financial issues can be particularly challenging for the behavioral health practitioner who sees a patient in the hospital. Physicians do not commonly address these issues when they do inpatient consultations and treatment. In our experience, it is awkward (and usually countertherapeutic) to walk into a patient’s room for a first-time consultation and present a detailed consent form to be signed before beginning. In these cases, the informed-consent procedure may be done over several sessions, and the patient may be asked if he or she has questions about the financial arrangements. In addition, the practitioner may want to be more understanding in dealing with any subsequent financial issues that arise for patients seen under these circumstances.

ASSOCIATION WITH PHYSICIANS IN “RISKY” AREAS OF PRACTICE

Although we are not aware of any case law, behavioral health practitioners who are associated with “risky” areas of medical practice may be vulnerable to being named in a malpractice action if one is initiated against the treating physician.  As an example, long-term opioid maintenance is sometimes used to treat appropriate patients with chronic non-cancer pain, but this treatment approach is not without controversy especially with the current opioid crisis. Per the medical standard of care, this treatment should be multidisciplinary and include the services of a behavioral health practitioner.   The screening criteria for selection and management of patients for this type of treatment is very specific; however, in practical settings many patients are receiving long-term opioid treatment who are either not appropriate for the intervention (e.g. history of substance abuse, lack of compliance with non-medicine pain management treatments, getting medications from multiple doctors, etc.) or are being medically managed inappropriately (e.g., not being seen on a frequent basis, lack of random drug screens, lack of opioid maintenance contract, etc.).  The literature has demonstrated that patients in this type of treatment are at increased risk for overdose and death (Franklin, Mai, Wickizer, Turner, Fulton-Kehoe, & Grant, 2005; See also current statistics on prescription-opioid deaths from the CDC).  As such, the behavioral health practitioner might be named in a malpractice lawsuit along with the treating physician if a patient were to die from an overdose (accidental or not) and a wrongful death lawsuit was initiated.  We are aware of at least one case in which all the physicians at a multidisciplinary chronic pain program were named in a suit of this nature, but the behavioral health practitioner was not sued since she was not involved in that case.  However, had she been seeing the patient as well, she would have undoubtedly been targeted in the lawsuit.  This demonstrates how liability lawsuits will often “cast a broad net” if the patient’s attorney believes there may be contributory negligence and additional damages can be pursued.

This underscores the importance for behavioral health practitioner to be aware of the “practice style” of any physician with whom they associate in a more formal practice setting.  We believe other areas of increased risk might include screening for gastric bypass, spine, cosmetic or other usually elective surgery.  This might especially be the case in gastric bypass and plastic surgery, which are now being marketed aggressively to the public as a quick and easy means to weight loss and “beautification”, respectively.  When this type of marketing occurs, one is likely to see several cases that are not appropriate for surgery.  The behavioral health practitioner working in this area might be vulnerable to legal action in cases where the patient is screened out (sued for not allowing the surgery that the patient desired) or where the patient is cleared for surgery, undergoes the procedure, and is dissatisfied with the results (sued in conjunction with the physician for damages from the surgery).  Any behavioral health practitioner who practices in higher risk medical areas should be very cognizant of the standard of care (both psychological and medical) and the practice style of the physicians with whom he or she has associated.    

MANAGED CARE

Health care reform and managed care is impacting virtually all aspects of psychological practice, including that of behavioral health. Managed care relates to malpractice issues in two important ways. First is whether the “standard of care” under managed care is measured differently than fee-for-service care that is not subject to limitations dictated by the insurance company (e.g., number of sessions, reimbursement “allowance” etc.). The argument is that if a patient is enrolled in a health plan that reimburses at a lower rate or has limited psychological treatment benefits, then the therapist should not be liable for providing a lower quality of care or terminating the treatment after the “allowed” number of sessions. According to Stromberg and Dellinger (1993) and others (Reamer, 2015), the courts have not recognized any lower standard of care based on insurance coverage or managed-care guidelines. The same rules (ethical and legal) apply for all patients regardless of these issues (Koocher & Keith-Spiegel, 2016). Of course, the behavioral health practitioner can deal with such things as a limited number of allowed treatment sessions in an effective manner by being aware of such issues for each patient at the beginning of treatment, using informed-consent procedures, and anticipating other options if necessary.

If the standard of care level being set by the managed care company is unacceptable and results in injury, the company along with the practitioner can be held liable (Wickline v State of California, 1986; See Koocher & Keith-Spiegel, 2016; Newman & Bricklin, 1991 for a review).  This issue began in the courts with the Wickline v. California (1986) decision, in which the plaintiff suffered the loss of her leg because of the failure of the health plan to provide treatment. Subsequent legal cases (e.g., Wilson v. Blue Cross of California, 1990) have reaffirmed that “when a treating physician makes a decision to discharge a patient because an insurance company refuses to pay benefits, either or both may be liable if their conduct was a substantial factor in bringing about the harm” (Stromberg & Dellinger, 1993, p. 13). Stromberg and Dellinger (1993) concluded that the practitioner should at least provide services on an emergency basis regardless of payment and “energetically seek approval for additional services the patient genuinely needs” (p. 13).  Appelbaum (1993) and others (Koocher & Keith-Spiegel, 1998) provide further guidelines to limit ethical and legal liability within a managed-care system. These include a duty to appeal adverse decisions by the insurance company, a duty to disclose to the patients the economic implications of their managed-care plan and its possible impact on treatment, and a duty to continue treatment under certain circumstances even if benefits have been exhausted. Of course, all actions related to dealing with the managed-care system should be documented in writing. Haas and Cummings (1991) present considerations to take into account before becoming involved in a particular managed-care system. These include consideration of the following questions:

• How much does the plan intrude into the patient-provider relationship?
• What provisions exist for exceptions to the rule?
• Are there referral resources if patient needs should exceed plan benefits?
• Does the plan provide assistance or training in helping the provider to achieve treatment goals?
• Are there ways in which the plan is open to provider input?
• Do plans clearly inform their policyholders of the limits of benefits?

Undoubtedly, malpractice issues related to managed care will continue to arise as these systems become more complex and patients and clinicians are increasingly influenced by these pressures.

MINIMIZING MALPRACTICE RISKS

Several authors have formulated guidelines for minimizing the malpractice risks (Reamer, 2015; Knapp et al., 2013; Soisson, VandeCreek, & Knapp, 1987; Stromberg & Dellinger, 1993; VandeCreek & Stout, 1993; Welch, 2003). These can be summarized as follows:

Taking these suggestions seriously and implementing them in everyday practice will not only help avoid any malpractice action but also improve the quality of care.

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Adaptation of Tarasoff decision chart. From Making Clinical Decisions After Tarasoff by M. J. Southard & B. H. Gross, 1982. In B. Gross & I. Weinberger (Eds.), New Directions for Mental Health Services: Vol. 16. The Mental Health Professional and the Legal System (p. 98), San Francisco: Jossey-Bass. Copyright 1982 by Jossey-Bass Publishers. Reprinted with permission.