HEALTH LAW SUPPLEMENT Autumn 2016

Will the Tarasoff rule be expanded to require protection of the public at large? Maybe, at least in California, the State in which the Tarasoff rule originated in 1976. The Tarasoff rule, followed in most states, and assumed to be an implicit permissive if not mandatory standard of care in many others including New York, is that psychotherapists have a duty (or permission) to protect and warn when “a patient has communicated to a psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.” See NY Mental Hygiene Law 33.13(c)(6). Now, in a case before the California Supreme Court, Rosen v Board of Regents of the UCLA, that Court is to decide whether to expand the duty of psychotherapists to protect to cases where a patient is deemed a threat to the general public rather than to a specified individual or individuals.

DT, a student at UCLA, was treated at UCLA’s hospital and diagnosed as paranoid and possibly schizophrenic. He was assessed there as having general “ideations of harming others” but had no plan or intent to harm anyone in particular. As conditions of his continued attendance at the university, he was barred from UCLA housing and required to attend therapy sessions. He also agreed to take anti-psychotic medication. However, he continued to exhibit paranoid behavior toward fellow students in a chemistry lab, and later, while working at the lab, stabbed another student, Rosen, who required extensive medical care in order to survive the attack. Rosen sued UCLA alleging that it had assumed a duty to protect its students from other students deemed potentially dangerous. Rosen won a judgment in trial court, but lost at an appellate court. Now the case is before the California Supreme Court for a decision that will have significant implications for psychotherapists there, and maybe, perhaps inevitably, beyond.

There are some commentators, e.g., the Project on the Foundations of Private Law, who view the case as one which should affirm the duty of a university to competently manage known risks presented by one of its students to others, i.e., that the measures taken by UCLA were inadequate and negligent. Other organizations, however, including the American Psychiatric Association which has filed an Amicus Brief in the case, see the case as having the potential to expand the Tarasoff rule as a precedent that would “eliminate any expectation of confidentiality in the therapeutic relationship.” The APA believes that patients with any violent ideation, fantasies or urges (and presumably lacking intent or plan so not covered by current reporting laws or standards) would be unlikely to seek treatment if they believed that their mental health practitioner might be required to report them to law enforcement or other authorities.

New York State rejects hebephilia as the basis for civil commitment. Under NY’s Sex Offender Management and Treatment Act, convicted sex offenders can be confined and ordered to undergo psychological treatment after they have served their prison terms. Ralph P is a 72 year old man who was convicted in 2001 of a sex offense against a 14 year old boy. In 2014 New York State sought to further civilly detain Mr. P based on his potential future dangerousness due to a diagnosis of “hebephilia.” Hebephilia, defined as attraction to pubescent children from ages 11 – 14, was rejected, however, as a diagnosis by the American Psychiatric Association when the DSM 5 was published in 2013. The APA rejected a proposal to expand the definition of pedophilia (involving attraction to pre-pubescent children) to include attraction by adults to pubescent minors. The judge in the Ralph P. case ruled that because hebephilia had not gained sufficient scientific recognition as an accepted mental disorder, it could not be used as a justification for further confinement of Mr. P under the Sex Offender Management and Treatment Act. To certain of the mental health experts who had testified for the defense, attraction to pubescent minors is not inherently abnormal psychologically. Under rulings of the US Supreme Court, in order to civilly commit a convicted sex offender after his or her prison sentence has been served, states, under their so called Sexually Violent Predator laws, must prove that the released offender still suffers from a recognized mental disorder.

New York’s Record Access Law may violate HIPAA’s access requirements. Under New York Public Health Law Section 18.1(e), when patients or other qualified persons (usually third parties designated by or legally responsible for patients) seek access to their records, healthcare practitioners may exclude from the records, “information maintained by a practitioner concerning or relating to the prior examination or treatment of a subject received from another practitioner, provided however, that such information may be requested by the subject directly from such other practitioner…” For example, if a psychotherapist has requested, with the patient’s authorization, a discharge summary from a hospital at which the patient was previously treated, then upon a request for that patient’s records, the therapist would exclude the discharge summary and direct the requester to seek a copy of that summary directly from the hospital. Presumably, the rationale for this exception is to allow the practitioner or institution that rendered service to the patient to decide for itself whether release of its records might harm the patient or others and thus legitimately decline access itself to its records as long as proper procedures are followed, i.e, using forms promulgated by the NYS Department of Health that give notice to the patient of a right to appeal and the procedures for doing so.

But in a recent ruling, the Office of Civil Rights of the US Department of Human Services, the enforcer of the HIPAA Rules, published a decision that stated that a practitioner may not deny access to a patient of his or her records maintained by the practitioner on the basis that the portion of records to which the patient is denied access are from another practice or institution. This seems to run directly counter to the New York State access law, and where the federal HIPAA Rues grant greater rights or security to patients, they are deemed to supercede contrary state laws. It is possible that the NYS law may still be valid because it does add a qualifier to the exception, that is, that the records denied be available from the direct provider of services. But for now, the HIPAA ruling does leave New York practitioners without definitive guidance as to whether to include in responses to access requests treatment information they have obtained from other providers.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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