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Below
you will find Risk Management Guidelines for mental
health practitioners as prepared for policyholders of
Everest National Insurance Company and Everest Reinsurance
Company. Please be advised that the cost of any risk
management measures you take will be borne by you, the
policyholder. However, we are happy to help you with
risk management by providing these Risk Management Guidelines
to you.
These
guidelines are intended to provide you with suggestions
as to how you can reduce the risk of liability claims
being made against you. These guidelines do not constitute
legal advice and should not be relied upon as a statement
of legal principles or standards.
One
of the keys to successfully defending any claim made against
a mental health professional is good documentation. The
following are all-important rules to follow for maintaining
good documentation:
1.
Never alter your records.
2.
Record all clinical findings and observations. This
includes all consultations, the treatment plans, nature
of other health problems, if any, and the clinical reasoning
process.
3.
Document all patient instructions and procedures. Further,
document that any risks were discussed with the patient
or someone capable of making a decision on the patient's
behalf.
4.
Document all patient missed appointments, non-adherence
to directed treatment, and treatment refusals.
5. Keep a written
record of all telephone conversations regarding the
patient, especially information about symptoms.
6. Print or write
clearly all patient instructions.
7. Do not release
the patient's record without obtaining the patient's
written permission. However, it may have to be released
pursuant to a court order.
8. Do not speak ill of your colleagues
or your patients.
9. Keep your closed
files in storage or somewhere easily accessible forever.
10. Make your records
reflect the high quality of care you give to your patients.
Patient
confidentiality is extremely important for a medical
health practitioner to maintain. The following is a
list of four important steps to take to maintain confidentiality.
1.
Clarify your own confidentiality procedures and
record them for yourself and your office staff (including
receptionists and transcriptionists). Patients have
a right to expect that communications given to a mental
health practitioner are to be kept in confidence, except
when disclosure is authorized in writing by the patient.
The exceptions to confidentiality depend upon applicable
law and may include: court ordered exams, employment
insurance exams, involuntary civil commitment, child
abuse, venereal disease, gunshot wounds, and future
violent crimes (in some cases, you must indicate to
patient that information will be shared). Confidentiality
applies even after the patient's death.
2.
Advise your patients of your confidentiality procedures
by giving all new patients a brochure or something in
writing that outlines your procedures. If you need to
discuss a patient's case with other mental health professionals,
advise the patient of the need to do this in order to
obtain the best care and obtain his or her written consent
to do so.
3.
Be careful when responding to requests for information
about the patient. If served with a subpoena or other
legal request, check with your attorney prior to complying.
Get your patient's written permission before sharing
any information with a referring physician. If an insurance
company requests information, get written permission
from the patient first. If the insurance company asks
for a copy of the patient's chart for reimbursement
purposes, send them only a summary of the visit. If
the patient's account is sent to collection, give them
only the patient’s name and the amount owed. Do
not tell collection agents that the patient is being
seen for mental health reasons.
4.
Use discretion when talking
with family members. Share therapeutic information
with parents of a minor that is only of a general and
limited nature. Parents of minors do have a legal right
to information; however, therapeutic considerations
generally dictate that detailed information not be provided.
For those patients that are 12 to 17 years old, get
both parental and minor's written consent prior to releasing
information. You can provide information to a non-custodial
parent only with the written consent the custodial parent.
Knowing
when informed consent is necessary and obtaining it
is an important part of every mental health practitioner's
practice. Below are some guidelines to assist you in
this area.
1.
Know when informed consent is necessary. In the
state of Florida, patients age 18 and older can give
informed consent. Exceptions to the need to obtain informed
consent are for alcohol treatment, drug treatment and
emergency care.
2.
Provide all basic information to the patient.
Thoroughly explain your diagnosis, the nature, purpose
and expected outcomes, risks and consequences, alternative
treatments, and prognosis.
3.
Elicit questions from the patient to assure understanding.
Address anything which you feel will lead to a misunderstanding.
Give the patient a written list of all major risks of
treatment. With the patient's permission, get a family
member to participate.
4.
Document the consent in the patient's file. When
written consent is necessary, try to use a form that
is written at an 8th to 10th grade level. Give the patient
a copy of the form.
Managing
your relationship with your patients is a critical part
to a successful practice and also helps you to avoid
claims. We will look at managing the professional/patient
relationship in general and then in two specific areas:
avoiding sexual contact with patients and managing potentially
violent patients.
1.
Establish appropriate expectations. Promote the
concept that you, as a mental health practitioner, are
the patient's ally, but be sure that the patient does
not place you on a pedestal. Rather, try to establish
a strong, trusting relationship. Treat the patient with
the same respect that you would want if a member of
your family were being treated. Provide a new patient
with a brochure concerning the nature of your practice,
if you have one.
2.
Explain your confidentiality procedures to the patient.
Give the patient a confidentiality brochure concerning
your procedures. (See guidelines on confidentiality
set forth above.) Emphasize the confidential nature
of the information given to a mental health practitioner
and explain your procedures as outlined in your brochure.
Provide reassurance to minors that detailed information
will not be provided to family members without patient's
permission.
3.
Keep the patient informed of treatment, progress
and options. Be sure that the patient understands the
nature of his or her treatment. Also keep the patient
informed of the progress of the therapy and other treatment
options. Have instructional brochures available for
patient to take home, if appropriate.
4.
Use extreme caution if treatment is discontinued.
Advise the patient verbally and by certified letter
that treatment is being discontinued. Suggest in your
letter other qualified mental health care providers.
Do not discontinue care to the patient suddenly if the
patient is having a crisis.
In
most jurisdictions, sexual contact between therapist
and patient is prohibited by law. To avoid sexual contact
with patients, you must be aware of your own health,
both mental and physical, as well as what is going on
in your own personal life. The following are some guidelines
that can help you avoid and spot the warning signs of
potential sexual contact.
1.
Promote your own well being. Develop friends
and associates outside of work. Try to balance work,
family and other commitments. Talk to other mental health
practitioners about sustaining professional growth.
2.
Monitor changes occurring in your own life. Be
aware of any changes that might make you vulnerable
to sexual involvement such as boredom, involvement in
an unhappy marriage, struggling with teenage children,
or if professionally you are unfulfilled, lonely or
bored, or you have been in practice for a long time.
3.
Be on the lookout for high-risk situations. Monitor
transference and countertransference situations. Avoid
seductive patients and be aware of patients that abuse
alcohol or drugs.
4.
When temptation strikes, think first! Reaffirm
your professional ethics. If you have sexual thoughts-do
not act upon them. Get help, seek therapy for yourself.
Think about the consequences -- this will be harmful
to your patient; you could be sued and ultimately lose
your license to practice; your family could find out
about it.
When
dealing with a patient, who is potentially violent,
take the following steps:
1.
Rate the patient's violence potential. Discuss
with the patient violent behavior and present thoughts,
feelings and behavior related to violence.
2.
Moderate risk to patient. Have the patient make
a contract not to hurt himself or herself and to call
the mental health provider when he or she feels that they
are in danger of hurting themselves. Increase frequency
of visits to the mental health care provider.
3.
Moderate risk to others. Have the patient make
a contract not to hurt others and to call mental health
care provider when they feel that they will lose control.
Increase the frequency of visits to the mental health
care provider. Obtain the patient’s consent or
consult with your attorney regarding confidentiality
issues in communicating the risk with the target person
or person(s) identified to be at risk. Do not tell anyone
with a hypothetical risk. Follow up with the persons
at risk after the warning has been communicated.
4.
For patients with high violence potential, have
them hospitalized either voluntarily or involuntarily.
Do not release the patient to the custody of a family
or family member unless they are willing to monitor
the patient 24 hours a day. Seek consultation from another
therapist and/or attorney, as necessary.
5.
For in-patient settings, inspect your facilities
and remove all materials that could potentially cause
injury. Establish clear written policies and procedures
for your staff to follow and orient them to follow them
religiously in the event of a disturbance.
6.
Documentation! Document your decision making
process with risk benefit analysis of possible interventions.
Do
not forget these other potential risk areas:
1.
Avoid claims for failure to diagnose or treat.
Be sure to take a thorough patient history and attempt
to obtain copies of any previous mental health treatment
received by the patient. Obtain psychiatric and/or medical
consultations, as you feel necessary. Inform patient
that you do not treat general medical conditions, but
do inform patient of his or her treatment options while
under your care.
2.
Avoid claims arising from working with other mental
health professionals. There can be many pitfalls
when working with other mental health care providers.
Here are a few to be aware of:
(a)
In a group practice, consider written policies for informed
consent, confidentiality measures, billing procedures
and referral and consulting relationships. Policies
should be flexible and recommend the minimal acceptable
level. Be sure these procedures are followed by you
and your staff and colleagues so that they are not used
against you.
(b)
Also, if you are in a group practice, clearly explain
to the patient your responsibility in regard to his
or her treatment.
(c)
If you have a business relationship with others, (i.e.
you are sharing revenues and profits), be aware of potential
liability risks under the doctrine of joint enterprise.
(d)
Check to be sure that your colleagues have adequate
malpractice coverage.
(e)
Monitor persons for whom you have supervisory responsibility
carefully to be sure that they are following proper
standards of care.
(f)
If you begin a consultative relationship, clarify the
nature and scope of the consultation in the patient's
chart and be sure to read the notes of other mental
health professionals involved in the care of this patient
that are consistent with your consultative relationship.
(g)
If you are taking calls for another mental health practitioner,
be sure that you have adequate access to his or her
records, get a briefing on problem patients, and refer
patients to the local Emergency Room, if necessary.
(h)
If you work for an organization and supervise/consult
with other health professionals, request a contract
that makes your employer legally liable for your work.
3.
Manage your own practice, too. Tour your waiting
room and office as if you were a new patient. Does it
reflect the therapeutic atmosphere and professionalism
that you want to project? Check your procedures and
be sure that they are adequate, in writing and being
followed by you and your staff.
4. Check your
office for safety hazards. Attempt to prevent accidental
occurrences in your office for any slip and fall hazards
by carefully checking the conditions in your office(s)
and waiting room(s) on a regular basis. For example,
check to be sure that there are no extension cords that
someone could trip over. Be sure that there is no standing
water on the floor. Check the edges of carpeting to
be sure that the edges are not coming up and/or that
the carpeting is not frayed. Be sure that there is a
clear and well-lighted walking path both outside your
office building and inside your waiting room and office.
Check the outside of your office building and be sure
that the walking paths and steps are well maintained.
If not and you own the building, or have responsibility
for its condition, have them fixed as soon as possible.
If you do not own the building, contact the building
management company as soon as possible and follow up
your verbal request with a written request. Keep a copy
of the written request for your files. Finally, be sure
to have adequate working smoke detectors in your office
and waiting rooms. Have a fire safety plan (e.g. check
your smoke detector batteries on a regular basis and
have an escape route planned to be used as necessary
should there be a fire in your building) and be sure
that you and your staff are knowledgeable and able to
implement the plan for yourselves and your patients.
Loss
Control is a daily responsibility of your individual
management. This publication is not a substitute for
your own loss control program. The information that
is provided in this document should not be considered
as all encompassing, or suitable for all situations,
conditions, or environments. Each organization is responsible
for implementing their safety / injury / illness / loss
prevention program and should consult with legal, medical,
technical, or other advisors as to the suitability of
using the information contained in this document.
We
hope you have found these risk management guidelines
useful.
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