The Evolving Dynamics of the Duty to Warn – Considerations of When & How to Breach Confidentiality, and to Whom?
A Maine Psychological Association Webinar Presented by Attorney Kenneth W. Lehman on April 1, 2022 from 9 AM – 12 PM
Commencing with the Tarasoff v. Regents of the University of California cases in the 1970s, the “duty to warn” expanded from California to other states across the nation as courts increasingly ruled that psychologists and other mental health professionals have a common law duty to warn. The underlying circumstances of these cases typically involved tragic situations in which psychologists and other mental health providers were faced with balancing their relative duties: to maintain confidentiality of a patient’s psychologist communications against breaching the patient’s confidentiality by reporting a threat about a risk of harm or a belief that a patient may pose a risk of harm. Always present in these cases was the question of whether the psychologist owed a duty to take an affirmative action – to do something – that would have prevented an act of violence to another person or self-harm, and whether it is the psychologist who is responsible for the harm that occurred.
Not long after the dust settled on the Tarasoff case, state legislatures began to enact so-called statutory “duty to warn” laws. “So-called” because as we will discuss, Maine’s health care confidentiality law, which has been in effect for many years, does not mandate a duty to warn, but rather permits disclosure of confidential health information if a duty to warn situation arises. We will discuss the “permissive” nature of this Maine law and also discuss the similar Tarasoff-type provisions in the HIPAA Privacy Rules. We will also discuss other similar situations when HIPAA permits disclosure of protected health information without a patient’s consent or knowledge. And we will discuss circumstances where Maine law controls to protect a patient’s PHI, notwithstanding a contrary provision in the HIPAA Privacy Rules.
We will review the provisions of Maine’s 2019 legislation, “An Act to Impose on Mental Health Professionals a Duty to Warn and Protect,” which shifts significantly the dynamics for Maine psychologists of the duty to warn, as this recent law mandates the duty to warn in certain cases, but specifies circumstances when a duty to warn may not apply.
There are myriad issues to consider. What laws or rules apply? What about the APA Code of Ethics and the ASPPB (the Association of State and Provincial Psychology Boards) Code of Conduct, both of which are adopted by the Maine Board of Examiners of Psychologists? What issues should you consider? What can you do to help protect your patient’s confidentiality? What action might you need to take to protect a third-person? What can you do to help protect yourself, and how can you document the decisions you have made and the actions you have decided must be taken – or what should you do about your decision not to act and to continue protecting your patient’s confidentiality.
My goal is to present the framework of these laws and issues and to engage with attendees in spirited dialogue about these difficult and often urgent situations.
- Participants will be oriented to the Tarasoff cases and the duty to warn provisions of the Maine Health Confidentiality Law (22 M.R.S. 1711-C) as originally enacted and as amended in 2013.
- Participants will be oriented to the provisions in the HIPAA Privacy Rules (45 CFR 164.512) concerning the permissive disclosure of PHI without a patient’s consent or knowledge, including the duty to warn and other similarly-based disclosures of confidential PHI.
- Participants will be oriented to psychologist’s and other providers’ duties under Maine’s 2019 Duty to Warn law and the particular provisions and protections of this law.
- Participants will the learn about various matters to consider when faced with a situation that may give rise to a duty to warn, including the interplay among the different laws and the applicable codes of ethics. Ways to address the issues presented will be discussed.
- Attendees will hopefully engage and participate in open discussion among themselves and with the Presenter, and will come away with an understanding of the many issues affected by the duty to warn.
Ken Lehman is a member and co-chair of the Health Care Practice at Bernstein Shur. Ken started his law career practicing in Rochester, NY, and after 5 years of grey skies along the shores of Lake Ontario, Ken and his wife Lauren realized the sun might never break through the clouds. They decided to move to Maine. From 1986-1992, Ken served as the Assistant Attorney General and Board Counsel for most of Maine’s health professional licensure boards, including the Board of Examiners of Psychologists, the Medical Board, the Osteopathic Board, the Social Work Board and many others. He joined Bernstein Shur in 1992, and he has concentrated his law practice primarily on representing psychologists and other individual health care providers and practices address various issues that arise in practice. Ken has sometimes described his law practice as helping health care providers deal with issues “where the tire meets the road.” He especially enjoys helping providers manage issues concerning patient care and complaints, clinical competence, professional ethics, credentialing, employment, confidentiality and HIPAA concerns, and helping address issues with providers who are dealing with personal substance use and alcohol use disorders. Ken regularly provides psychologists and other health professionals with legal counsel and defense of professional licensure complaints. Since 1990, Ken has taught many seminars to health professional associations and the Maine bar. For 21 years, he taught a course he developed on Medical Jurisprudence at UNE College of Osteopathic Medicine. Ken received his A.B. degree, summa cum laude, from Hamilton College and his Juris Doctor degree from the University of Virginia School of Law. Since 2001, Maine lawyers have selected Ken for listing in Best Lawyers in America® for Health Law and since 2009 for Administrative & Regulatory Law. Ken and Lauren made the most wonderful decision when they decided to make their home in Maine some 37 years ago. They have raised and fledged three terrific and thoughtful sons, and they are embracing their new roles as doting grandparents of 3 year old Elsa and 1 year old Leo, with whom they enjoy breakfasting on FaceTime most mornings, and trying to read one or two books before the day begins.