Finding an Attorney for Your Mental Health Practice

Consultation with an attorney is activity that most mental health clinicians engage in on an infrequent basis. As a general matter, mental health practice is a profession that sees a relatively low number of lawsuits. In addition, many clinicians have the option of consulting with an attorney provided by their professional liability carrier (see the previous article on this topic) should the need arise for a consultation regarding professional negligence or the prospect of administrative action. Yet, there are many instances when clinicians feel compelled to consult with an attorney of their own. There are many reasons why clinicians choose to hire a private attorney, the most common reasons being:
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Consulting your malpractice insurance carrier’s attorney: what you might not know…..

Most clinicians take great care to maintain an ethical and legally compliant practice. Yet, despite these efforts there are still instances where consultation with available written materials and other clinicians yields incomplete answers. Clinicians have several options for additional help when the questions concern compliance with applicable statutes, regulations, and case law. In these situations clinicians often turn to attorneys for assistance in navigating these difficult dilemmas.

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Informed Consent (part 2): what it is and what it isn’t

A previous post discussed the origins and development of informed consent. Hopefully that provides a good basis for understanding this post, which is a discussion about what informed consent is and isn’t. Many clinicians have come to know informed consent as a form, when it is in fact a discussion. Readers who haven’t seen the previous post on the origins of informed consent might want to read that post first (it can be found here), as it provides some of the background information for this post.

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Juvenile Incompetency to Stand Trial: can it be based on developmental immaturity?

On May 10th, 2007, the California Court of Appeal for the Third Appellate District addressed the longstanding question of whether juvenile respondents may be found incompetent to stand trial based upon age-related developmental immaturity, or whether such a finding must be predicated on a “mental disorder” or developmental disability. It is a decision that draws heavily on developmental research, due process, and criminal procedure. It is well worth the read for clinicians and attorneys who work in juvenile proceedings.

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Informed Consent (part 1): its origins and development

When asked about informed consent, most clinicians readily identify it as a piece of paper that is signed toward the beginning of a professional encounter. This is true. However, the real truth is that informed consent is actually much more. Surprisingly, an explanation of informed consent also requires a bit of an excursion into the legal worlds of battery and contracts.

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The Mysterious Recurring Two Physician Approval Question

Another of the more persistent myths in mental health practice is whether certain acts require the approval of two physicians. In the last 6 months I have been asked the following question, in varying form, four times:

“Is it true that if two physicians sign off on _______, this satisfies the legal requirement for _______?”

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Time-frame for Reporting Elder Abuse

A question came up at a “law and ethics in geriatric mental health” training in LA County regarding the requirements for reporting elder abuse. Specifically, the question was whether or not there is a period of time within which mandated reporters must make a report when they know of or suspect elder or dependent adult abuse?
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Confidentiality vs. Privilege: what is the difference?

One of the conceptual questions that clinicians (particularly forensic clinicians) have concerns the difference between confidentiality and the psychotherapist-patient privilege. Many clinicians use them interchangeably, though they are actually two different concepts.

The comparison of confidentiality and privilege is a difficult question to address, partly because it is a comparison of apples and oranges. The comparison is actually much easier when considered as the difference between a “duty” and “privilege,” rather than “confidentiality” and “privilege.”

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Your Malpractice Insurance….

Professional liability and risk management tend to be some of the more stressful topics for most clinicians. Receiving a license to practice involves years of study and significant investments of energy and money. It is thus understandable that most clinicians go to great lengths to protect their ability to practice. Often this involves frequent anxiety about liability, licensure, and the ways in which exposure can be minimized.

Clinicians’ concerns notwithstanding, mental health practice remains one of the less risky health professions. This is due to a number of factors, including the physically noninvasive nature of treatment, ongoing training in ethics, and a professional culture that looks favorably upon consultation and supervision. Most clinicians are very concerned about limiting the ways in which they are personally, professionally, and financially exposed to litigation and it is because of this the vast majority of clinicians carry professional liability insurance.

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Professional Wills

Most clinicians aspire to have a fairly good record-keeping system, as well as procedures for maintaining the confidentiality of those records. As a profession, therapists tend to be quite concerned about record-keeping. This concern is appropriate. Unlike some businesses, the information contained in clinicians’ practice related records is highly sensitive and deserving of great care.

It is surprising, then, that many clinicians have not made arrangements for the care of these records if the clinician is suddenly and unexpectedly unable to continue their practice, such as if the clinician dies or is injured. This may be due to a number of factors, such as a general reluctance on the part of many people to engage in end of life planning, communicate advanced medical directives, write wills, etc. But procrastinate or not, this is something that clinicians really should do.

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