Legal Issues Associated With Mental Health Treatment
Being a sound mental health professional entails that the individual be competent, practice his/her profession with integrity, be aware of his/her limitations, respect the dignity of the client, and understand the do’s and dont’s of practice from both ethical and legal perspectives. What is ethical and what is legal are not always the same.
It is crucial that health care providers have a fundamental understanding of the legal issues associated with mental health patients. Awareness of the rights of the mentally ill will help ensure that appropriate measures are taken to care for clients professionally and in accordance with their legal rights.
This continuing education offering should be considered as information only and is not intended to replace or expand on any legal statute. In the event a legal issue should arise please consult an attorney. This course also offers information on broad topics and is not state specific. We will explore the areas that mental health professionals will meet an intersection of ethics and legal issues.
This course will explore:
- The definition of mental illness
- Stigma of mental illness
- Diagnosis and treatment
- Duty to warn
- Involuntary commitment
- Mandated reporting
- Relationships with clients
- Patient rights and NAMI
Mental illness can be defined as a mental behavioral pattern or anomaly that causes either suffering or an impaired ability to function in ordinary life (disability), and which is not developmentally or socially normative. Mental disorders are generally defined by a combination of how a person feels, acts, thinks or perceives. This may be associated with particular regions or functions of the brain or other parts of the Central Nervous System (CNS). It is often most noticeable in a social context.
The causes of mental disorders are varied and in some cases unclear, and theories may incorporate findings from a range of fields. Treatment services are generally provided in a psychiatric hospitals and other community based facilities. Clinical treatments are provided by mental health professionals. Psychotherapy and psychiatric medications are two major treatment options, as are social interventions, peer support and self-help groups. In a minority of cases there might be involuntary admission and detention, as well as involuntary treatment, where legislation allows. Stigma and discrimination can add to the suffering and disability associated with mental disorders or with being diagnosed or judged as having a mental disorder.
The definition and classification of mental disorders is a key issue for researchers as well as service providers and those who may be diagnosed. For a mental state to classify as a disorder, it generally needs to cause dysfunction. Most clinical documents use the term mental “disorder”, while “illness” is also common. There are currently two systems that classify mental disorders:
- ICD-10 Chapter V: Mental and Behavioral Disorders;
- The Diagnostic and Statistical Manual of Mental Disorders (DSM).
Each of these list categories of disorders and provide standardized criteria for diagnosis. They have converged their codes in recent revisions so that the manuals are generally comparable; however, significant differences still remain. The classification of mental disorders is controversial with one group arguing that it is entirely a matter of value judgments (including the implication of what is normal) while another proposes that it is or should be entirely objective and scientific (including by reference to statistical norms). Common hybrid views argue that the concept of mental disorder is subjective and can never be precisely defined, or conversely that the concept always involves a mixture of scientific facts and subjective value judgments. Although the diagnostic categories are referred to as ‘disorders’, they are presented as medical diseases, but are not validated in the same way as most medical diagnoses. Some neurologists argue that classification will only be reliable and valid when based on neurobiological features rather than clinical interview, while others suggest that the differing ideological and practical perspectives need to be better integrated.
The Diagnostic and Statistical Manuel of Mental Disorders (DSM)
The DSM is published by the American Psychiatric Association offers a common language and standard criteria for the classification of mental disorders. It is used, or relied upon, by clinicians, researchers, health insurance companies, the legal system and policy makers together with alternatives such as the International Statistical Classification of Diseases and Related Health Problems (ICD-10). The DSM evolved from systems for collecting census and psychiatric hospital statistics and from a United States Army manual. Revisions since its first publication in 1952 have incrementally added to the total number of mental disorders, although also removing those no longer considered to be mental disorders.
The other commonly used manual for the classification of mental disorders is the ICD-10. It is distinguished from the DSM in that it covers health as a whole. It is the official diagnostic system for mental disorders in the U.S. and is used widely in Europe and other parts of the world. The coding system used in the DSM is designed to correspond with the codes used in the ICD, although not all codes may match at all times because the two publications are not revised synchronously.
While the DSM has been praised for standardizing psychiatric diagnostic categories and criteria, it has also generated controversy and criticism. Critics, including the National Institute of Mental Health argue that the DSM represents an unscientific and subjective system. There are ongoing issues concerning the validity and reliability of the diagnostic categories; the reliance on superficial symptoms, the sue of artificial dividing lines between categories and from normality; possible cultural bias; and medicalization of human distress.
Many mental health professionals use the manual to determine and help communicate a patient’s diagnosis after an evaluation; hospitals, clinics, and insurance companies in the U.S. also generally require a DSM diagnosis for all patients treated. The DSM can be used clinically in this way, and also to categorize patients using diagnostic criteria for research purposes. Studies done on specific disorders often recruit patients whose symptoms match the criteria listed in the DSM for that disorder. An international survey of psychiatrist in 6 countries comparing use of the ICD-10 and DSM found the former was more often used for clinical diagnosis while the latter was more valued for research.
By design, the DSM is primarily concerned with the signs and symptoms of mental disorders, rather than the underlying causes. It claims to collect them together based on statistical or clinical patterns. The lack of a causative or explanatory basis, however, is not specific to the DSM, but rather reflects a general lack of pathophysiological understanding of psychiatric disorders. If anything, the research has shown the situation is even more complex than initially imagined, and we believe not enough is known to structure the classification of psychiatric disorders according to etiology; consequently, the DSM’s focus on superficial symptoms is claimed to be largely a result of necessity, since there is little agreement on a more explanatory classification system.
The treatment history of mentally ill patients has frequently shown a lack of understanding of the disease, as well at times poor judgment of treatment modalities and care of patients. At one time the consensus was that they be institutionalized and isolated from society. In essence, people who were considered mentally ill were often locked up in institutions and forgotten about. In 1975, the U.S. Supreme Court ruled that mental illness alone did not justify incarceration. Consequently, knowing the legal rules and procedures will help ensure that appropriate measures are taken to care for these vulnerable patients without violating their constitutional rights.
Laws and regulations have added policy regarding the use of isolation and restraints. These techniques may be used only in an emergency to assure the physical safety of the patient and/or of others or to prevent significant property damage.
It is also a felony in most states to cause the involuntary commitment of someone without due cause and to knowingly make a false certificate or application. It is generally a misdemeanor to knowingly provide false information for the purpose of involuntary commitment. Someone who acts in good faith and without negligence is immune from civil or criminal liability.
Again in most states, a person who is capable of making health related decisions has the right to consent to or refuse medical treatment. A person who has been admitted to a mental health facility lacks the capacity and is unable to make certain kinds of informed decisions due to a diagnosed mental illness or serious emotional disorder. Incapacity is shown by the fact that the person is unable to understand the proposed procedure, its risks and benefits, or the available alternative procedures.
A major area of concern for legal issues remains confidentiality. It is common for a state to have several specific statutes governing different types of medical records and information. Every state has some form of legislation governing mental health records. These generally take four forms.
First, many states have laws governing the records of patients in state mental hospitals or mental health programs. These are in some instances part of general statutes governing state health.
Second, a number of states have laws governing the records of specific mental health practitioners, most commonly psychologists, social workers, and counselors.
Third, a number of states have specific statutes governing the records of patients who are involuntarily committed to mental institutions. These statutes recognize, presumably, that patients who are involuntarily committed to institutions might have a special claim to privacy, though these laws also usually make provision for the use of records in the commitment process.
Fourth and finally, most states have statutes that generally govern the records of all mental patients.
The laws in most states specify rules regarding what may be revealed in court, the patient’s right to confidentiality and the exceptions. Most states make confidences between a psychiatrist and/or a therapist and a patient privileged; consequently, communications between these professionals in the course of or in connection with a therapeutic counseling relationship are privileged, and neither the psychiatrist nor any member of the staff may testify or be compelled to testify about such communications without the consent of the patient, unless a court order is in effect.
Most states also have statutes governing substance abuse records. Some states have specific laws governing substance abuse counselors as a licensed profession and forbid disclosure of records without consent. Several states, on the other hand, permit broader disclosure of substance abuse information than does the federal law.
Mental health records, with the sensitive and subjective nature of the information contained in them, require a higher standard of protection than standard medical records.
In general, the HIPAA Privacy Rule, with a few exceptions, provides the patient and an authorized individual the “right to review, inspect and receive a copy of the medical records and billing records that are held by health plans and healthcare providers covered by the Privacy Rule.” One of the “few exceptions” relates to a providers psychotherapy notes. Psychotherapy notes are those taken by a mental health professional during the course of a conversation related to treatment with the patient and “are kept separate from the patient’s medical and billing records.”
Specific portions of the regulations related to psychotherapy records are 45 C.F.R. 164.508, 164.524, and 164.526.
Section 164.524 specifically addresses access to an individuals protected health information (PHI). While most of the information contained therein can be reviewed and obtained, exceptions apply to: (i) psychotherapy notes and (ii) information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.
Section 168.508(a)(2) specifically addresses the authorization requirements related to psychotherapy notes. Although these notes are kept separate from a patients medical and billing records, they still can be used “to carry out treatment, payment, or healthcare operations” and used internally for training purposes or any legal proceeding.
With the increased penalties that were promulgated under the HITECH Act and the HIPAA Final Regulations, it is imperative that covered entities, business associates, and subcontractors utilize increased precautions. A breach including mental health information could cause significant harm to the person whose PHI is exposed; and, in turn, to the entity in the form of increased civil penalties and possible criminal penalties. State laws may also apply.
DUTY TO WARN
A responsibility that is often misunderstood and misapplied is the duty to warn third parties. For example, if a patient has made a threat to physically harm another person, and the mental health professional reasonably believes that the patient is capable of committing such an act, the mental health professional is obligated to disclose to the extent necessary to warn or protect the potential victim. The mental health professional or service provider may discharge this duty by:
Informing the victim of the threat;
Having the person admitted on a voluntary basis;
Seek admission of the person to a mental health facility on an involuntary basis.
The other way to discharge this responsibility is to pursue a course of action that will discharge the duty to other areas of the medical practice. While patient privacy and autonomy are important in all aspects of patient care, only the area of mental health puts at risk the most basic and fundamental of constitutional rights, a patient’s liberty. Detaining someone against his will is a serious action. Due process requires a comprehensive set of procedural rules that mental health care professionals must follow, making patient care a balancing act between patient autonomy and the patients well being. Each state takes its unique position on the duty to warn. Please refer to your states statutes.
MANDATORY REPORTING LAWS
All 50 states, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands have laws and policies that specify procedures for making and responding to reports of suspected child abuse or neglect. Mandated reporters are required by most States to make an immediate report when they suspect or know of abusive or neglectful situations.
Approximately 48 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands designate professions whose members are mandated by law to report child maltreatment. Individuals designated as mandatory reporters typically have frequent contact with children. Such individuals may include:
- Social workers
- Teachers, principals, and other school personnel
- Physicians, nurses, and other health-care workers
- Counselors, therapists, and other mental health professionals
- Child care providers
- Medical examiners or coroners
- Law enforcement officers
The circumstances under which a mandatory reporter must make a report vary from state to state. Typically, a report must be made when the reporter, in his or her official capacity, suspects or has reason to believe that a child has been abused or neglected. Another standard frequently used is in situations in which the reporter has knowledge of, or observes a child being subjected to, conditions that would reasonably result in harm to the child. Permissive reporters follow the same standards when electing to make a report.
Most States maintain toll-free telephone numbers for receiving reports of abuse or neglect.18 Reports may be made anonymously to most of these reporting numbers, but States find it helpful to their investigations to know the identity of reporters. Approximately 18 States, the District of Columbia, American Samoa, Guam, and the Virgin Islands currently require mandatory reporters to provide their names and contact information, either at the time of the initial oral report or as part of a written report.
The laws in Connecticut, Delaware, and Washington allow child protection workers to request the name of the reporter. In Wyoming, the reporter does not have to provide his or her identity as part of the written report, but if the person takes and submits photographs or x-rays of the child, his or her name must be provided.
SEXUAL RELATIONSHIPS WITH CLIENTS
Some social alliances are so inherently destructive to the professional relationship that they are defined as malpractice, as in the case with sexual associations between psychotherapists and their clients. In some states, this kind of behavior is criminalized.
Dual relationships, by most ethical guidelines, should be avoided whenever possible. Just think how difficult it would be to do marriage counseling with your son’s little league baseball coach. However dual relationships aren’t illegal. States do have guidelines on sexual relationships with current and previous clients.
The conflict of interest this situation invites might reasonably lead a mental health professional to conclude that involvement in a sexual relationship with a current or former client violates the duty to practice reasonably competently because it can be expected to have an impact on the client’s continuing health. This is the position of many state legislatures, which have criminalized sexual relationships between psychotherapists and former clients where the professional services have only been terminated for a relatively short time. Even when such conduct is not criminal, it still may be so inherently harmful to the former client as to constitute malpractice.
NAMI is the nations largest non-profit mental health education, advocacy and support organization dedicated to the care and protection of mentally ill patients. This organization has generated a set of standards, beliefs and guidelines to help manage the mental health issues.
NAMI believes that every person with a mental illness is entitled to professional services commensurate with the services afforded other illnesses. Every person is entitled to be informed about treatment options and medications (risks, side effects and consequences of refusal).
With professional consultation, every person who has the capacity and competence to do so should be involved in their treatment planning. When an individual lacks capacity and competence the judgment of others may be justified in determining treatment.
Involuntary commitment and court-ordered treatment decisions must be made expeditiously so that individuals can receive treatment in a timely manner. Involuntary inpatient and outpatient commitment and court-ordered treatment should be used as a last resort.
States should adopt standards to provide for involuntary commitment and/or court ordered treatment when an individual is disabled (person is substantially unable, to provide for basic needs; or is likely to deteriorate if not provided with treatment; or lacks capacity, which means that, as a result of the mental illness, the person is unable to fully understand or lacks judgment to make an informed decision about treatment. State laws should also allow for consideration of past history in making determinations about involuntary commitment and/or court-ordered treatment because past history is often a reliable way to anticipate the future
According to NAMI, the standard for states to justify emergency commitments (for an initial 24 to 72 hours) should be “information and belief.” For involuntary commitments beyond the initial period, the standard should be “clear and convincing evidence.”
Court-ordered outpatient treatment should be considered as a less restrictive alternative to involuntary inpatient treatment.
Private and public health insurance and managed care plans must cover the costs of involuntary inpatient and outpatient commitment and/or court-ordered treatment.
NAMI supports having safeguards for patient confidentiality to prevent inappropriate access to psychiatric information.
NAMI supports the involvement of consumer and family members as partners in the development of policy and use of data for decision making.
NAMI believes that national standards should be adopted for maintaining the privacy and confidentiality of individually identifiable medical records.
NAMI believes that consumers (patients) of healthcare services have a right to access to their medical records.
Federal legislation protecting privacy and confidentiality of individually identifiable health information should contain strong and effective remedies for violations of these
The exchange of information between professionals shall be treated confidentially and protected.
NAMI believes that a serious mental illness by itself does not constitute sufficient reason to deprive a person of the right to a free and appropriate education, the right to vote, or any other civil liberty. NAMI supports full and rapid implementation of the Americans with Disabilities Act (ADA) and enforcement of its statutory protection against discrimination in education, employment, public accommodation, and other life endeavors.
NAMI believes that education about mental illness at all levels of judicial and legal systems is crucial to the appropriate disposition of civil and criminal cases involving individuals living with mental illness. Judges, lawyers, other court personnel, police officers, correctional officers, parole and probation officers, other law enforcement personnel, and emergency medical transport and service personnel should be required to complete a minimum of 20 hours of training about mental illness.
NAMI opposes the use of solitary confinement and equivalent forms of extended administrative segregation for persons with mental illnesses.
NAMI calls upon federal, state and other correctional authorities to provide mental health care alternatives to solitary confinement that include enhanced mental health treatment, services and programs, crisis intervention training for correctional officers and mental health step-down units. States that have adopted such proactive efforts to eliminate solitary confinement have documented highly positive results that include reduced psychiatric symptoms, less violence, and significant cost savings.
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