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Common Legal Issues Common Legal Issues Edith Brous, MS/MPH, JD, RN Focus on Malpractice Prevention for Counselors • Vol. 1, No. 2 • 2016 1 “Knowing the risks that confront today’s counselors represents the critical first step in the process of enhancing quality of care, serving clients appropriately and reducing liability exposure.” (CNA, 2014, p. 77) INTRODUCTION Most dangerously, coercive outpatient treat- The clinical practice of counseling can present many ment may drive people away from long-term complex legal matters. Counselors must have access to treatment. Unless there is a full array of com- others who can provide guidance and advice on navi- munity mental health services, mandatory gating some of the legal issues that can arise within outpatient treatment has not been shown to the course of a counselor/patient relationship. Consul- add to the effectiveness of community mental tation with supervisors, organizational committees, health services and, indeed, may interfere with employer policies, or legal counsel can reduce liability recovery by compromising personal responsi- exposure for the counselor when faced with challeng- bility and lowering self-esteem (Health Man- ing situations. agement Associates, 2015). COMMON LEGAL ISSUES MHA suggests the following principles for cir- Involuntary treatment cumstances in which involuntary outpatient Although the most effective treatment for mental commitment is instituted: illness involves voluntary participation, there are in- stances in which counselors’ clients pose a serious risk 1. Presumption of competency: adults are pre- of harm to themselves or others. Involuntary treat- sumed to be competent and capable of mak- ment, as a last resort, might be necessary in these cas- ing their own mental health care decisions; es. This can take the form of involuntary medication or other treatments, emergency hospitalization for 2. Declaration of incompetency: individual state evaluation, commitment to an inpatient facility, man- procedures for determining when a person is dated outpatient therapy, or a combination of all. It incompetent vary and mental health provid- is essential that counselors know the laws in the states ers understand that even the most serious they practice so patient rights are not violated in the mental illness does not render a person incom- process of implementing any of these measures. State petent most of the time; laws vary and court orders may be necessary. The decision to compromise a person’s autonomy 3. Informed consent: the patient’s informed con- should be made only after careful analysis of state sent is required for mental health treatment laws and ethical considerations in a particular case. until a person has been declared incompetent; The World Health Organization recommends that, “[P]ersons with mental disorders and psychosocial 4. Standard. Serious risk of physical harm to disabilities should be empowered and involved in men- themselves or others in the near future: in- tal health advocacy, policy, planning, legislation, ser- voluntary commitment is reserved for those vice provision, monitoring, research and evaluation persons who pose serious imminent risk of (World Health Organization, 2013). physical harm to themselves or others and is not used in cases of risk to property or other Similarly, Mental Health America (MHA) expresses non-physical harm; concern about involuntary treatment: Today we know … persons with mental health 5. Least restrictive alternative: dignity and au- conditions are not only capable of making tonomy are best preserved when persons with their own decisions regarding their care, but mental health conditions are treated in the that mental health treatment and services can least restrictive environment; only be effective when the consumer embraces 6. Procedural protections: due process must it, not when it is coercive and involuntary. In- be preserved through notice, the right to be voluntary mental health treatment is a serious heard, attorney representation, independent curtailment of liberty. … Focus on Malpractice Prevention for Counselors • Vol. 1, No. 2 • 2016 2 mental health evaluation, appeals, limited was completely on his own at home and with no follow time limits with reviews for continuation of up supervision, and had stopped taking his medication involuntary commitment, and adherence to (Magnus, 2007). required standards of evidence; The Webdale family lobbied for legislation to compel persons like Goldstein to take medication and for the 7. Qualified right to refuse treatment: persons state to monitor and hospitalize them when they were who have been convicted of crimes and are non-compliant. The New York State Legislature enact- serving prison sentences maintain their right ed Mental Health Hygiene Law § 9.60 (Kendra’s Law) to refuse medication and the imposition of in- in 1999 and renewed the law in 2005 (New York Codes, voluntary medication should be reserved for 1999). Kendra’s law allows courts to order treatment those inmates who meet rigorous standards for certain people with serious mental illness. Courts and procedures; can order people with a history of violence or multiple 8. Opposition to outpatient commitment: hospitalizations to stay in outpatient treatment while non-coercive measures are instituted prior to living in the community. Under the law, AOT can be 1 compelling treatment; ordered “for certain people with mental illness who, in view of their treatment history and present circum- 9. Voluntary treatment should be truly volun- stances, are unlikely to survive safely in the commu- tary: people should not be coerced into admis- nity without supervision” (New York State Office of sions and those who are voluntarily commit- Mental Health, 2006). Most states have passed similar ted should be free to leave when they choose; laws, referring to AOT programs with different names, and such as involuntary outpatient commitment (IOC) or mandatory outpatient treatment (MOT). Stud- 10. Advanced directives: persons with mental ill- ies indicate that such laws are effective in reducing ness should be able to direct their treatment homelessness, psychiatric hospitalizations, arrest wishes in advance (Mental Health America, and incarceration, and harmful behavior, as well as 2015). decreasing costs and improving outcomes (Treatment Advocacy Center, 2009; National Alliance for the The Treatment Advocacy Center (TAC) presents a dif- Mentally Ill, ND; Health Management Associates, ferent point of view regarding involuntary hospital- 2015) but they vary considerably and suffer from ization or assisted outpatient treatment (AOT), “[T] many obstacles (Treatment Advocacy Center, 2014a). he deplorable conditions under which more than one Relapse is associated with medication non-compliance million men and women with the most severe mental and persons with mental illness can be non-compliant illness live in America will not end until states univer- with medications for many reasons. They might be sally recognize and implement involuntary commit- unaware or not believe that they are sick. Alcoholism/ ment as an indispensable tool in promoting recovery drug abuse or poor relationships with mental health among individuals too ill to seek treatment (Treatment providers can interfere with compliance. Side-effects Advocacy Center, 2015, p. 4). The TAC recommends might be too disturbing. The medications might be too universal adoption of emergency hospitalization and expensive or unavailable (Treatment Advocacy Cen- need for treatment standards, enactment of AOT laws ter, 2014b). Medications can be administered against by the five states that have not passed them, and the a person’s will under certain circumstances as well. As provision of sufficient inpatient beds. with any other form of involuntary treatment, each An example of an AOT statute is “Kendra’s Law” state balances an individual’s rights with public safe- in New York. On January 3, 1999, Andrew Goldstein ty and it is critical to understand the laws in which a pushed Kendra Webdale to her death in front of a counselor practices. subway train. Goldstein was a paranoid and delusion- Washington v. Harper is a United States Supreme al man with a history of multiple hospitalizations Court case that addresses involuntary medication for for schizophrenia, multiple emergency department inmates. Walter Harper served a prison sentence after encounters, and a long history of violence, having being convicted of robbery. During his incarceration attacked 13 women. He was not receiving treatment and while on parole, he received psychiatric treatment for mental illness at the time he pushed Webdale to which included the consensual administration of med- her death and had previously received sporadic and ications. uncoordinated care. The hospital characterized him as “extremely dangerous and potentially violent” yet he Focus on Malpractice Prevention for Counselors • Vol. 1, No. 2 • 2016 3 When he was not taking antipsychotic medications, Counselors who terminate the relationship when the his condition deteriorated and he became violent. He client continues to require counselor services should was transferred to the Special Offender Center (SOC) do so with the understanding that legal and ethical a state facility for convicted felons with serious men- issues can arise. Some situations in which counselors tal illness. The SOC diagnosed Harper with what was might terminate the relationship include: then called manic-depression and required him to take • when the client has needs that
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