legal and ethical issues in behavioral health and ethical issues in behavioral health ......

Legal and Ethical Issues in Legal and Ethical Issues in

Behavioral HealthBehavioral Health

Mark W. BinkleyMark W. BinkleyGeneral Counsel, SCDMHGeneral Counsel, SCDMH

ObjectivesObjectives

�� Overall Objective: Overall Objective:

To prevent your patient’s legal problems To prevent your patient’s legal problems from becoming your legal problems.from becoming your legal problems.


�� Topics:Topics:

�� RReview of rules regarding privacy/access to eview of rules regarding privacy/access to behavioral health patient recordsbehavioral health patient records

�� RResponding to subpoenas, court orders or law esponding to subpoenas, court orders or law �� RResponding to subpoenas, court orders or law esponding to subpoenas, court orders or law enforcementenforcement

�� Maintaining ethical boundariesMaintaining ethical boundaries

�� Treatment of Children/AdolescentsTreatment of Children/Adolescents

�� CCase study ase study


�� Take Home Message:Take Home Message:

�� The rules governing professional conduct The rules governing professional conduct don’t change during legal proceedings;don’t change during legal proceedings;don’t change during legal proceedings;don’t change during legal proceedings;

�� Nothing in the law is at odds with your Nothing in the law is at odds with your professional standards professional standards

PRIVACYPRIVACY

State LawState Law

�� State confidentiality laws impose a general State confidentiality laws impose a general duty to maintain the privacy of health care duty to maintain the privacy of health care informationinformationinformationinformation

�� Two exceptions in all laws:Two exceptions in all laws:

�� Patient ConsentPatient Consent

�� Court Order authorizing and requiring Court Order authorizing and requiring disclosuredisclosure

PRIVACYPRIVACY

State LawState Law

�� Most laws also have additional exceptions:Most laws also have additional exceptions:

�� §§1919--1111--95 (Psychologist, LPC, LMFT,LPES, LMSW, 95 (Psychologist, LPC, LMFT,LPES, LMSW,

LISW, Clinical Nurse Specialist):LISW, Clinical Nurse Specialist):

Intention of patient to commit crime/harmIntention of patient to commit crime/harm�� Intention of patient to commit crime/harmIntention of patient to commit crime/harm

�� Necessary to collect feeNecessary to collect fee

�� Defend provider from charge of misconductDefend provider from charge of misconduct

�� “confidences necessary to promote care”“confidences necessary to promote care”

�� §§4444--2222--90 (Commitment records):90 (Commitment records):

�� In emergency, to prevent harmIn emergency, to prevent harm

�� Involuntary commitment proceedingsInvoluntary commitment proceedings

�� Between facility staffBetween facility staff

. . .What . . .What

other laws?other laws?

PRIVACYPRIVACY

State:State:

§§1616--33--1640(Child Victim); 1640(Child Victim); §§6363--77--310, 330 310, 330 & 420 (Child Abuse/Neglect); & 420 (Child Abuse/Neglect); §§6363--1919--2010 2010 (DJJ); (DJJ); §§6363--77--2600 (Termination of 2600 (Termination of Parental Rights); Parental Rights); §§6363--99--780 (Adoption); 780 (Adoption); Parental Rights); Parental Rights); §§6363--99--780 (Adoption); 780 (Adoption); §§6363--1111--1350 (Continuum of Care); 1350 (Continuum of Care); §§4444--2222--100 (DMH); 100 (DMH); §§4444--115115--10 (Physicians); 10 (Physicians); §§4444--2020--340 & 760 (DDSN)340 & 760 (DDSN)

State (continued):State (continued):

§§4444--2929--135 & 136 (Sexually Transmitted 135 & 136 (Sexually Transmitted Disease); Disease); §§4444--5353--140 (Treatment for 140 (Treatment for Controlled Substances /Evidence); Controlled Substances /Evidence); §§4444--66--90&170 (HHS); 90&170 (HHS); §§4444--4141--60 (Abortion); 60 (Abortion); 90&170 (HHS); 90&170 (HHS); §§4444--4141--60 (Abortion); 60 (Abortion); §§4444--66--170 &180 (Medically Indigent); 170 &180 (Medically Indigent); §§4444--77--2590 (Handicapped Infants & 2590 (Handicapped Infants & Toddlers); Toddlers); §§4444--3131--20 (TB); 20 (TB); §§4444--2929--135 135 (Venereal Disease); (Venereal Disease); §§4343--3535--20,25,35&540 20,25,35&540 (Vulnerable Adults)(Vulnerable Adults)

PRIVACYPRIVACY

FEDERAL LAWSFEDERAL LAWS

�� HIPAAHIPAA�� Health Insurance Portability & Accountability Act of Health Insurance Portability & Accountability Act of

1996199619961996

�� 42 C.F.R. Part 2 42 C.F.R. Part 2

�� Federal regulations governing the Federal regulations governing the confidentiality records of alcohol and drug confidentiality records of alcohol and drug abuse programs. abuse programs.

. . .What . . .What

other laws?other laws?

Federal:Federal: 7 U.S.C. 7 U.S.C. §§ 2020(e)(8)(Food 2020(e)(8)(Food Stamps); 18 U.S.C. Stamps); 18 U.S.C. §§5038(Youthful 5038(Youthful Offender); 20 U.S.C. Offender); 20 U.S.C. §§1232g (Education); 1232g (Education); 20 U.S.C. 1400 (Individuals with 20 U.S.C. 1400 (Individuals with Disabilities Education); 42 U.S.C. Disabilities Education); 42 U.S.C. §§671 671 (a)(8) (Adoption); 42 U.S.C. (a)(8) (Adoption); 42 U.S.C. §§1786 1786 (a)(8) (Adoption); 42 U.S.C. (a)(8) (Adoption); 42 U.S.C. §§1786 1786 (Women, Infants and Children); 42 U.S.C. (Women, Infants and Children); 42 U.S.C. §§1396 (a)(7)(Medicaid); 42 U.S.C. 1396 (a)(7)(Medicaid); 42 U.S.C. §§5676 5676 (Juvenile Justice); 42 U.S.C. (Juvenile Justice); 42 U.S.C. §§5731 5731 (Runaway and Homeless Youth).(Runaway and Homeless Youth).

PRIVACY vs. PRIVILEGEPRIVACY vs. PRIVILEGE

�� No therapistNo therapist--patient privilege recognized patient privilege recognized in State lawin State law

�� However, a therapistHowever, a therapist--patient privilege may patient privilege may be recognized by the federal rules of be recognized by the federal rules of be recognized by the federal rules of be recognized by the federal rules of evidence, which apply in proceedings in evidence, which apply in proceedings in federal court.federal court.

Jaffee v. Redmond, 518 U.S. 1 (1996)

Mary Lu Redmond, a police officer, received obtained counseling from a licensed clinical social worker after she shot and killed Ricky Allen. Allen’s Estate sued Redmond and municipality for damages. The lawyer for the Estate sought access to the notes from Redmond's counseling. Redmond's counsel resisted asserting the conversations were protected against involuntary disclosure by a psychotherapist-patient against involuntary disclosure by a psychotherapist-patient privilege. The District Court judge rejected the argument, but the therapist’s notes were not released. The judge instructed the jury that they could presume that the contents could have been unfavorable to Redmond. The jury awarded monetary damages.

PRIVACY vs. PRIVILEGEPRIVACY vs. PRIVILEGE

�� The 7The 7thth Circuit Court of Appeals found Circuit Court of Appeals found that Federal Rule of Evidence 501 that Federal Rule of Evidence 501 provided a basis to recognize a provided a basis to recognize a psychotherapistpsychotherapist--patient privilege in federal patient privilege in federal psychotherapistpsychotherapist--patient privilege in federal patient privilege in federal civil litigation.civil litigation.

�� Appealed to U.S. Supreme CourtAppealed to U.S. Supreme Court

In a 7-2 decision, written by Justice John Paul

Rehnquist O'Connor Scalia Kennedy Thomas Souter

Stevens

Breyer Ginsburg

In a 7-2 decision, written by Justice John Paul Stevens, the Court ruled that Federal Rule of Evidence 501 protects the conversations between Redmond and her therapist from compelled disclosure. The Rule recognizes a "psychotherapist-patient privilege."

PRIVACYPRIVACY

FEDERAL LAW FEDERAL LAW –– HIPAAHIPAA

�� Who Has to Comply With HIPAA?Who Has to Comply With HIPAA?

�� A A Covered EntityCovered Entity must complymust comply

�� Covered entity Covered entity means:means:�� Covered entity Covered entity means:means:�� (1) A health plan;(1) A health plan;

�� (2) A health care clearinghouse;(2) A health care clearinghouse;

�� (3) A health care provider who transmits any (3) A health care provider who transmits any health information in electronic form in health information in electronic form in connection with a standard transaction connection with a standard transaction

HIPAA Privacy RuleHIPAA Privacy Rule

�� The Privacy Rule sets standards for The Privacy Rule sets standards for usesuses and and disclosuresdisclosures that are that are authorized or required and what rights authorized or required and what rights patients have with respect to their patients have with respect to their health information.health information.health information.health information.

�� The Privacy Rule applies to protected The Privacy Rule applies to protected health information in any formhealth information in any form..

HIPAA TerminologyHIPAA Terminology

�� Protected Health InformationProtected Health Information (PHI) is (PHI) is individually identifiable health individually identifiable health information that contains unique information that contains unique features or details by which the features or details by which the features or details by which the features or details by which the individual can be identified.individual can be identified.

�� Treatment, Payment and Health Care Treatment, Payment and Health Care OperationsOperations (TPO) are common uses of (TPO) are common uses of PHI for which HIPAA does not require PHI for which HIPAA does not require an authorization.an authorization.

HIPAA TerminologyHIPAA Terminology

�� DisclosureDisclosure means the release, transfer, means the release, transfer, provision of access to, or divulging of provision of access to, or divulging of information outside the entity holding information outside the entity holding the information.the information.

�� Business AssociateBusiness Associate is a person or entity is a person or entity that performs a function that requires that performs a function that requires the creation, use or disclosure of PHI the creation, use or disclosure of PHI on behalf of a CE but is not considered on behalf of a CE but is not considered part of the workforce.part of the workforce.

What is What is 42 C.F.R. Part 242 C.F.R. Part 2??

The federal regulations governing The federal regulations governing “confidentiality of alcohol and drug abuse “confidentiality of alcohol and drug abuse patient records.” It implements the patient records.” It implements the federal law on this topic. federal law on this topic. federal law on this topic. federal law on this topic.

Drug and alcohol treatment and Drug and alcohol treatment and prevention programs have been covered prevention programs have been covered by these regulations and law for 30 years.by these regulations and law for 30 years.

Alcohol and DrugAlcohol and DrugConfidentiality?Confidentiality?A&D “Program”?A&D “Program”?

“Program” “Program” (Federal Regulations 42 CFR Part 2): (Federal Regulations 42 CFR Part 2):

1)1) Federally assisted (e. g. Medicaid, Federally assisted (e. g. Medicaid, Medicare, tax exempt status) program, Medicare, tax exempt status) program,

and and and and

2) Represents itself as and provides, 2) Represents itself as and provides, alcohol/drug abuse diagnosis, alcohol/drug abuse diagnosis, treatment, or referral for treatment. treatment, or referral for treatment.

1)1) 42 CFR Part 2 Covers A&D “Programs” 42 CFR Part 2 Covers A&D “Programs” Not Individual Records.Not Individual Records.

2)2) If the entity is a “Program”, then If the entity is a “Program”, then all all of of its records are covered by 42 CFR Part 2.its records are covered by 42 CFR Part 2.its records are covered by 42 CFR Part 2.its records are covered by 42 CFR Part 2.

3)3) If the entity is not a “Program”, then its If the entity is not a “Program”, then its records are not covered, even if they records are not covered, even if they contain A&D diagnosis, history, etc.contain A&D diagnosis, history, etc.

42 CFR Part 2 is stricter than most other 42 CFR Part 2 is stricter than most other

confidentiality laws (e.g., HIPAA) requiring:confidentiality laws (e.g., HIPAA) requiring:

�� Specific Court Order, or Specific Court Order, or

�� Valid Signed Authorization, orValid Signed Authorization, or

�� Report of a Crime on Premises, orReport of a Crime on Premises, or�� Report of a Crime on Premises, orReport of a Crime on Premises, or

�� Report of Child Abuse/Neglect orReport of Child Abuse/Neglect or

�� Emergency Emergency

HIPAA, while less restrictive, does give patient more control over own information.

PRIVACYPRIVACY

ACCESS TO RECORDSACCESS TO RECORDS

�� “A patient or the guardian of a patient has “A patient or the guardian of a patient has access to his medical records, and a access to his medical records, and a person subject to a proceeding or person subject to a proceeding or person subject to a proceeding or person subject to a proceeding or receiving services pursuant to this chapter receiving services pursuant to this chapter has complete access to his medical has complete access to his medical records relevant to this commitment…”records relevant to this commitment…”

Sec. 44Sec. 44--2222--110, 110, South Carolina Code of LawsSouth Carolina Code of Laws

PRIVACYPRIVACY


�� “The patient has the right to access “The patient has the right to access information contained in his or her clinical information contained in his or her clinical records within a reasonable time frame. records within a reasonable time frame. records within a reasonable time frame. records within a reasonable time frame. The hospital must not frustrate the The hospital must not frustrate the legitimate efforts of individuals to gain legitimate efforts of individuals to gain access to their own medical records…”access to their own medical records…”

42 CFR 42 CFR §§482.13(d)(2)482.13(d)(2)

PRIVACYPRIVACY

LIMITING ACCESS TO RECORDSLIMITING ACCESS TO RECORDS

�� Patients or guardians of patients may be Patients or guardians of patients may be refused access to:refused access to:

Information provided by a 3Information provided by a 3rdrd party under party under �� Information provided by a 3Information provided by a 3rdrd party under party under assurance of confidentialityassurance of confidentiality

�� Information which the attending physician Information which the attending physician deems in writing to be detrimental to the deems in writing to be detrimental to the patient’s treatmentpatient’s treatment

Sec. 44Sec. 44--2222--110(B), 110(B), South Carolina Code of LawsSouth Carolina Code of Laws

PRIVACYPRIVACY


�� Providers may not withhold information Providers may not withhold information from patient except:from patient except:�� Information about another person to prevent Information about another person to prevent

harm to that person;harm to that person;harm to that person;harm to that person;

�� Inspection could likely endanger the life or Inspection could likely endanger the life or physical safety of patient or another;physical safety of patient or another;

�� Information obtained under promise of Information obtained under promise of confidentiality.confidentiality.

HIPAA privacy regulations HIPAA privacy regulations §§164.524164.524

PRIVACYPRIVACY

Case StudiesCase Studies

PRIVACYPRIVACY

Case StudiesCase Studies

�� The case of Dr. The case of Dr. HedgepathHedgepath

�� S.C. Board of Medical Examiners v. S.C. Board of Medical Examiners v. HedgepathHedgepath, 480 , 480 S.E.2d 724 (1997)S.E.2d 724 (1997)

The case of Dr. EnglandThe case of Dr. England�� The case of Dr. EnglandThe case of Dr. England

�� McCormick v. EnglandMcCormick v. England, 494 S.E.2d 431 (Ct. App. , 494 S.E.2d 431 (Ct. App. 1998)1998)

�� LLR casesLLR cases

RESPONDING TO SUBPOENASRESPONDING TO SUBPOENAS

�� Subpoena: Latin for “under penalty”Subpoena: Latin for “under penalty”

�� Generally evokes negative emotionsGenerally evokes negative emotions

Can be intimidating and anxiety producingCan be intimidating and anxiety producing�� Can be intimidating and anxiety producingCan be intimidating and anxiety producing


�� Civil Civil (Common Pleas, Family or Probate (Common Pleas, Family or Probate Court)Court)

�� Criminal Criminal (General Sessions, Magistrate or (General Sessions, Magistrate or Municipal Court)Municipal Court)Municipal Court)Municipal Court)

�� Administrative Administrative (State agency, (State agency, egeg. . Department of Labor, Licensing and Department of Labor, Licensing and Regulation)Regulation)


PURPOSE OF SUBPOENASPURPOSE OF SUBPOENAS

�� COMMANDS the person or entity named to COMMANDS the person or entity named to do one (or two) of three things:do one (or two) of three things:do one (or two) of three things:do one (or two) of three things:

�� AppearAppear in Courtin Court

�� AppearAppear at a depositionat a deposition

�� ProduceProduce documents or recordsdocuments or records


DUTY TO RESPONDDUTY TO RESPOND

NEVER IGNORE A SUBPOENANEVER IGNORE A SUBPOENANEVER IGNORE A SUBPOENANEVER IGNORE A SUBPOENA


SUBPOENA IN A SUBPOENA IN A CIVILCIVIL CASECASE

�� Reasons for Objection/Reasons for Objection/nonnon--partyparty

�� Not reasonable time to complyNot reasonable time to comply

�� Travel > 50 miles from home countyTravel > 50 miles from home county�� Travel > 50 miles from home countyTravel > 50 miles from home county

�� Requires disclosure of protected infoRequires disclosure of protected info

�� Undue burden or expenseUndue burden or expense

�� Seeks unretained expert opinionSeeks unretained expert opinion


SUBPOENA IN A CIVIL CASESUBPOENA IN A CIVIL CASE

�� Objection to a subpoena by a nonObjection to a subpoena by a non--party party may be made to issuing party w/in 14 may be made to issuing party w/in 14 daysdaysdaysdays

�� Objection by “timely motion” to CourtObjection by “timely motion” to Court

�� Court may:Court may:

�� QuashQuash

�� ModifyModify

�� ConditionCondition



�� OK for nonOK for non--party to ignore subpoena party to ignore subpoena commanding commanding productionproduction of records and/or of records and/or appearance at a appearance at a depositiondeposition > 50 miles > 50 miles appearance at a appearance at a depositiondeposition > 50 miles > 50 miles from home countyfrom home county

�� No excuse for ignoring subpoena No excuse for ignoring subpoena commanding commanding appearanceappearance in in courtcourtregardless of distanceregardless of distance



�� When basis for objection is privacy:When basis for objection is privacy:

�� Advise and consult with patientAdvise and consult with patient

Contact attorney issuing subpoenaContact attorney issuing subpoena�� Contact attorney issuing subpoenaContact attorney issuing subpoena

�� Document actionsDocument actions


Subpoena for Records subject Subpoena for Records subject ONLYONLY to HIPAAto HIPAA

�� HIPAA Privacy HIPAA Privacy regsregs do permit disclosure do permit disclosure upon “satisfactory assurances”upon “satisfactory assurances”

�� Requestor made a reasonable effort to Requestor made a reasonable effort to �� Requestor made a reasonable effort to Requestor made a reasonable effort to provide written notice of request to patient; provide written notice of request to patient; oror

�� Requestor has obtained a “qualified protective Requestor has obtained a “qualified protective order”order”

••Social Workers, Professional Counselors, Social Workers, Professional Counselors, LMFTs, Psychologists disclosures are LMFTs, Psychologists disclosures are governed by S.C. Code Ann. governed by S.C. Code Ann. §§1919--1111--95. 95.

••Subpoenas from attorneys in civil litigation Subpoenas from attorneys in civil litigation are not listed and, therefore, a subpoena are not listed and, therefore, a subpoena alone is generally NOT sufficient to make alone is generally NOT sufficient to make


alone is generally NOT sufficient to make alone is generally NOT sufficient to make disclosure. disclosure.

••Generally patient authorization or a court Generally patient authorization or a court order needed before disclosure.order needed before disclosure.


SERVICE of CIVIL SUBPOENASSERVICE of CIVIL SUBPOENAS

�� Method:Method:

�� Personal ServicePersonal Service

�� Home Service (“suitable age and discretion”)Home Service (“suitable age and discretion”)�� Home Service (“suitable age and discretion”)Home Service (“suitable age and discretion”)

�� Certified or registered, return receipt, Certified or registered, return receipt, restricted deliveryrestricted delivery

�� Time/Notice RequirementsTime/Notice Requirements

�� FeesFees


ENFORCEMENT OF CIVIL SUBPOENASENFORCEMENT OF CIVIL SUBPOENAS

�� ENFORCEABLE BY CONTEMPTENFORCEABLE BY CONTEMPT


SUBPOENA IN ADMINISTRATIVE PROCEEDINGSUBPOENA IN ADMINISTRATIVE PROCEEDING

�� Generally the same considerations apply Generally the same considerations apply as exist for civil subpoenaas exist for civil subpoena

�� Any objections should be put in writing to Any objections should be put in writing to �� Any objections should be put in writing to Any objections should be put in writing to the person pursuing the subpoenathe person pursuing the subpoena

�� To enforce an administrative subpoena, To enforce an administrative subpoena, the agency will have to apply to a Court or the agency will have to apply to a Court or Administrative Law JudgeAdministrative Law Judge

Law Enforcement Requests Law Enforcement Requests

and Warrantsand Warrants


LAW ENFORCEMENT REQUESTS AND WARRANTSLAW ENFORCEMENT REQUESTS AND WARRANTS

�� Requests for informationRequests for information

�� Disclosures incident to preventing harmDisclosures incident to preventing harm

�� DMH only: “necessary to cooperate”DMH only: “necessary to cooperate”�� DMH only: “necessary to cooperate”DMH only: “necessary to cooperate”

�� Search WarrantsSearch Warrants

�� Arrest WarrantsArrest Warrants


SUBPOENA IN A CRIMINAL CASESUBPOENA IN A CRIMINAL CASE

�� Subpoenas in criminal cases will generally Subpoenas in criminal cases will generally only be used to command appearance or only be used to command appearance or production of documents before the Courtproduction of documents before the Courtproduction of documents before the Courtproduction of documents before the Court

�� If privacy is an issue, attempt to advise If privacy is an issue, attempt to advise and consult client in advance and inform and consult client in advance and inform attorney issuing subpoenaattorney issuing subpoena

Sex, Money, & DrugsSex, Money, & Drugs

Disciplinary Actions of SC Disciplinary Actions of SC

Social Work, Counselor, & Social Work, Counselor, &

Psychology Licensing BoardsPsychology Licensing BoardsPsychology Licensing BoardsPsychology Licensing Boards

Violations by Professional GroupsSource: http://www.llr.state.sc.us/

Type of Type of violationviolation

Social WorkSocial Work Counselors & Counselors & TherapistTherapist

PsychologyPsychology

Sexual misconduct 5 1010 22

Impaired 6 33 00Impaired professional

6 33 00

Exploitation 0 11 00

Confidentiality 4 44 00

Fraud 5 11 00

Professional EthicsProfessional Ethics

BOUNDARY ISSUESBOUNDARY ISSUES

�� Critical to stay within your professional Critical to stay within your professional rolerole

�� Be friendly but not friends (Be friendly but not friends (inc.inc. Facebook)Facebook)�� Be friendly but not friends (Be friendly but not friends (inc.inc. Facebook)Facebook)

�� Be supportive but don’t provide supportBe supportive but don’t provide support

�� Know yourselfKnow yourself

�� Sex, MoneySex, Money and Drugsand Drugs

�� Risks: Job, liability, license, careerRisks: Job, liability, license, career

Treatment of MinorsTreatment of Minors

AGE OF MAJORITYAGE OF MAJORITY

�� ““Child” means a person under the age Child” means a person under the age of eighteen.of eighteen.

----Sections 63Sections 63--11--40; 4440; 44--2424--10, 10, South Carolina Code of South Carolina Code of LawsLaws


CONSENT TO TREATMENTCONSENT TO TREATMENT

�� Minors age 16 or 17Minors age 16 or 17

�� may consent to any health servicesmay consent to any health services

from a person authorized by law to render from a person authorized by law to render �� from a person authorized by law to render from a person authorized by law to render the particular health servicethe particular health service

�� “and the consent of no other person shall “and the consent of no other person shall be necessary unless such involves an be necessary unless such involves an operation”operation”



�� Minors of any ageMinors of any age

�� may receive health services of any kindmay receive health services of any kind

when services are “deemed necessary”when services are “deemed necessary”�� when services are “deemed necessary”when services are “deemed necessary”

�� by a person authorized by law to render a by a person authorized by law to render a particular health serviceparticular health service

�� unless such involves an operationunless such involves an operation



�� MiscellaneousMiscellaneous

�� Married minors of any age may consent for Married minors of any age may consent for themselves or their childrenthemselves or their childrenthemselves or their childrenthemselves or their children

�� Unmarried minors who have a child may Unmarried minors who have a child may consent to health services for their childconsent to health services for their child

�� Any consent given by a minor valid under law Any consent given by a minor valid under law when given is not subject to later when given is not subject to later disaffirmancedisaffirmance



�� WHOSE CONSENT?WHOSE CONSENT?

�� Under age 16, Parent or “guardian”Under age 16, Parent or “guardian”

�� 16 or 17, consent by patient alone16 or 17, consent by patient alone�� 16 or 17, consent by patient alone16 or 17, consent by patient alone

�� Is 16/17 year old patient’s consent the only Is 16/17 year old patient’s consent the only consent which is effective?consent which is effective?

�� 42 CFR Sec. 2.14(b)42 CFR Sec. 2.14(b)

�� State law: Sec. 63State law: Sec. 63--55--30, 30, South Carolina Code of South Carolina Code of LawsLaws


DIVIDED CUSTODYDIVIDED CUSTODY

�� “…the mother and father have equal “…the mother and father have equal power, rights, and duties, and neither power, rights, and duties, and neither parent has any right paramount to the parent has any right paramount to the parent has any right paramount to the parent has any right paramount to the right of the other concerning the custody right of the other concerning the custody of the minor or any other matter affecting of the minor or any other matter affecting the minor.”the minor.”




�� “Each parent, whether the custodial or “Each parent, whether the custodial or noncustodial parent of the child, has equal noncustodial parent of the child, has equal access and the same right to obtain all access and the same right to obtain all access and the same right to obtain all access and the same right to obtain all educational records and medical records educational records and medical records of their minor children and to participate of their minor children and to participate in their children’s school activities unless in their children’s school activities unless prohibited by order of the court.”prohibited by order of the court.”




�� “The patient has the right to access “The patient has the right to access information contained in his or her clinical information contained in his or her clinical records within a reasonable time frame. records within a reasonable time frame. records within a reasonable time frame. records within a reasonable time frame. The hospital must not frustrate the The hospital must not frustrate the legitimate efforts of individuals to gain legitimate efforts of individuals to gain access to their own medical records…”access to their own medical records…”

42 CFR 42 CFR §§482.13(d)(2)482.13(d)(2)



�� Providers may withold information in Providers may withold information in certain limited circumstances:certain limited circumstances:

Information about another if hospital Information about another if hospital �� Information about another if hospital Information about another if hospital determines inspection would cause harm;determines inspection would cause harm;

�� Inspection could endanger the life or safety of Inspection could endanger the life or safety of another;another;




�� Providers may not withhold information Providers may not withhold information from patient except:from patient except:�� Information about another person to prevent Information about another person to prevent

harm to that person;harm to that person;harm to that person;harm to that person;

�� Inspection could likely endanger the life or Inspection could likely endanger the life or physical safety of patient or another;physical safety of patient or another;


HIPAA privacy regulations HIPAA privacy regulations §§164.524164.524



�� Absent a provision in a Court Order Absent a provision in a Court Order limiting or restricting the authority of the limiting or restricting the authority of the nonnon--custodial parent, the noncustodial parent, the non--custodial custodial nonnon--custodial parent, the noncustodial parent, the non--custodial custodial parent retains his or her parental rights.parent retains his or her parental rights.


ABUSE AND NEGLECT ALLEGATIONSABUSE AND NEGLECT ALLEGATIONS

�� “Reason to believe that a child’s physical “Reason to believe that a child’s physical or mental health or welfare has been or or mental health or welfare has been or may be adversely affected by abuse or may be adversely affected by abuse or may be adversely affected by abuse or may be adversely affected by abuse or neglect.”neglect.”

�� Mandatory reporting by all categories of Mandatory reporting by all categories of health care providers, among others.health care providers, among others.




�� If suspected perp is child’s parent, If suspected perp is child’s parent, guardian or “person responsible for child’s guardian or “person responsible for child’s welfare” report is made to county DSS welfare” report is made to county DSS ororwelfare” report is made to county DSS welfare” report is made to county DSS ororto law enforcement.to law enforcement.

�� If suspected perp is someone If suspected perp is someone other thanother thanparent, guardian prcw, report parent, guardian prcw, report onlyonly to law to law enforcement.enforcement.


Abuse and Neglect AllegationsAbuse and Neglect Allegations

�� WhitnerWhitner v. Statev. State, , 492 S.E.2d 777492 S.E.2d 777 (SC (SC 1997)1997)

�� PPregnant woman/viable fetusregnant woman/viable fetus�� PPregnant woman/viable fetusregnant woman/viable fetus

�� Abusing an Abusing an illegal substance illegal substance v. behavior v. behavior which is not which is not illegal but may pose a risk of illegal but may pose a risk of harm to a viable fetus, such harm to a viable fetus, such as as drinking drinking alcohol. alcohol.



�� IIllegal llegal substance substance v. legal but risky conduct.v. legal but risky conduct.

�� “Reason to believe that a child’s physical … “Reason to believe that a child’s physical … health … has been or may be adversely affected health … has been or may be adversely affected health … has been or may be adversely affected health … has been or may be adversely affected by abuse or neglect.”by abuse or neglect.”

�� "Child abuse or neglect" or "harm" occurs when "Child abuse or neglect" or "harm" occurs when the parent …engages in acts or omissions which the parent …engages in acts or omissions which present present a substantial risk of physical or mental a substantial risk of physical or mental injuryinjury to the child.to the child.



�� DSS and LE must keep reporters’ identity DSS and LE must keep reporters’ identity confidential;confidential;

�� Reporters’ are immune from liability if report is Reporters’ are immune from liability if report is �� Reporters’ are immune from liability if report is Reporters’ are immune from liability if report is made in good faith;made in good faith;

�� Potential penalty for failure to report: Potential penalty for failure to report: Misdemeanor/up to $500 fine/6 mo. Misdemeanor/up to $500 fine/6 mo. imprisonment imprisonment



�� Even if one or both parents are the Even if one or both parents are the subject of an allegation of child abuse or subject of an allegation of child abuse or neglect, unless there is a court order neglect, unless there is a court order neglect, unless there is a court order neglect, unless there is a court order limiting the accused parent’s authority, the limiting the accused parent’s authority, the parent(s) may continue to exercise their parent(s) may continue to exercise their parental rightsparental rights——including access to the including access to the child’s medical record.child’s medical record.



�� Orders granting custody to DSS usually Orders granting custody to DSS usually contain a provision authorizing DSS to contain a provision authorizing DSS to give consent to medical care and give consent to medical care and give consent to medical care and give consent to medical care and providing that DSS may obtain child’s providing that DSS may obtain child’s medical recordsmedical records



�� Orders granting custody to DSS usually Orders granting custody to DSS usually do do notnot contain provisions limiting the rights of contain provisions limiting the rights of the parents, other than their custody the parents, other than their custody the parents, other than their custody the parents, other than their custody rightsrights

�� Mental health providers treating child in Mental health providers treating child in DSS custody should request and review DSS custody should request and review copy of the court order copy of the court order

Mental Health Providers Mental Health Providers

In the Legal SystemIn the Legal System

THE ROLE OF THE TREATMENT PROVIDERTHE ROLE OF THE TREATMENT PROVIDER

�� Always stay within professional boundaries Always stay within professional boundaries as a provideras a provider

Avoid becoming an advocate for, or Avoid becoming an advocate for, or �� Avoid becoming an advocate for, or Avoid becoming an advocate for, or defender of, your patientdefender of, your patient

�� Resist the urge or decline the request to Resist the urge or decline the request to taking sides in legal disputestaking sides in legal disputes

Mental Health ProvidersMental Health Providers



�� Rules governing professional conduct Rules governing professional conduct don’t change during legal proceedingsdon’t change during legal proceedings

Maintain objectivity and the appearance of Maintain objectivity and the appearance of �� Maintain objectivity and the appearance of Maintain objectivity and the appearance of neutralityneutrality




�� If your neutrality and objectivity are If your neutrality and objectivity are compromised, so is credibility as a witnesscompromised, so is credibility as a witness

Worse, you may make negligent errors Worse, you may make negligent errors �� Worse, you may make negligent errors Worse, you may make negligent errors ((McCormick v. EnglandMcCormick v. England))

�� Worse, still, you may make ethical errors Worse, still, you may make ethical errors ((S.C. Board of Medical Examiners v. S.C. Board of Medical Examiners v. HedgepathHedgepath))




�� Custodial or nonCustodial or non--custodial, absent court custodial, absent court order parent(s) maintain authority to order parent(s) maintain authority to authorize release of recordsauthorize release of recordsauthorize release of recordsauthorize release of records

�� Provider does have discretion to limit/deny Provider does have discretion to limit/deny access in limited circumstancesaccess in limited circumstances

�� Any limits and reasons must be Any limits and reasons must be documented in patient’s recorddocumented in patient’s record


In the Legal SystemIn the Legal SystemTHE ROLE OF THE TREATMENT PROVIDERTHE ROLE OF THE TREATMENT PROVIDER

�� Decisions about passes or limitations on Decisions about passes or limitations on access must be based on reasonable access must be based on reasonable clinical or administrative judgmentclinical or administrative judgmentclinical or administrative judgmentclinical or administrative judgment

�� Legal proceedings are generally not a Legal proceedings are generally not a reason to limit access, but do need to reason to limit access, but do need to consider allegations of improper treatment consider allegations of improper treatment in making a decision in making a decision

Mental Health ProvidersMental Health Providers


Case StudyCase Study

The Case of Elian G.The Case of Elian G.The Case of Elian G.The Case of Elian G.

THE ENDTHE ENDTHE ENDTHE END

Mark W. BinkleyMark W. BinkleyGeneral Counsel, SCDMHGeneral Counsel, SCDMH

legal and ethical issues in behavioral health and ethical issues in behavioral health ......

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