By Elizabeth M. Felton, JD, LICSW, Associate Counsel and Carolyn I. Polowy, JD, General Counsel
Introduction
Since 1999, suicide has been recognized as a serious public health problem in the United States.[1] There are 112.7 suicides per day, one every 12.8 minutes, making suicide the 10th leading cause of death for Americans. In 2013, there were 41,149 suicides reported in the U.S.[2]
One in every five mental health professionals will lose a patient to suicide at some point in their career.[3] The therapist becomes a “clinician-survivor” when a patient takes his or her own life in the course of treatment. Many therapists have described this experience as the “most profoundly disturbing event of their career.”[4] The social workers experienced feelings of sadness, guilt, disbelief, confusion, grief, anger, shock, and anxiety. In addition, the fear of legal issues can loom over the entire experience.
NASW members often call for legal consultation after learning that a client died by suicide, seeking guidance on their legal responsibilities in this tragic situation. This LDF Legal Issue of the Month article discusses some of the legal considerations confronting social workers when a client dies by suicide.
Liability
The occurrence of a tragedy like suicide does not directly or necessarily support a legal claim of malpractice. However, mental health professionals who are treating clients in crisis may be accused of having some responsibility for a client’s suicide. Establishing legal liability is grounded on the same principle as medical malpractice cases. The following four elements must be present to succeed in a malpractice claim:
- Duty — a professional relationship existed between therapist and client;
- Breach of duty — therapist acted in a negligent or improper manner by failing to act (omission) or doing something that should not have been done (commission);
- Causation — a legally demonstrated causal relationship between therapist’s negligence and the injury of the client; and
- Damages — client suffered harm or injury and must show proof of actual compensable injury.[5]
Lawsuits involving suicide and malpractice are filed by someone who survives the person who died by suicide, such as the parent or spouse, or the suicide victim’s estate executor. These lawsuits are typically called wrongful death lawsuits.[6]
Speaking with family members
There are many emotionally laden issues that surround a client’s suicide. A difficult issue that a therapist may struggle with is whether or not to speak to the deceased client’s family members. Therapists are sometimes contacted by surviving family members for many reasons. In some cases, merely acknowledging to the family that the client was being treated by the therapist raises legal considerations. However, there are other cases where the surviving family members knew the therapist was treating the client (e.g., the therapy sessions were paid for by the parents’ health insurance). After a client’s suicide, some therapists feel conflicted about speaking to surviving family members. They may be reluctant due to concern about the client’s confidentiality or fear that the family will blame the therapist. On the other hand, some therapists may want to share compassion and provide support to the survivors, and dispel any appearance of guilt or that they are hiding information.
Social workers must remember that privacy rights continue after the death of a client.[7] The therapist will need to explain to the survivors that disclosures about what the client discussed in treatment are limited by privacy laws. Social workers will have to balance their own feelings of shock and disbelief with the grieving family’s need for information, while respecting client confidentiality.[8]
Tips When Speaking with Family Members
- Express sympathy and support for the family
- Listen and respond to the emotional needs of the grieving family rather than talking
- Focus on the sadness of the death and the needs of the family rather than the details of the treatment
- Provide information about suicide in general rather than specific information about the client
- Explain confidentiality laws
- Provide any resources or referrals for individual therapy, if needed
- Prepare a list of suicide survivor resources to give to the family if they want them
- Avoid engaging in therapeutic work with the family, since this may create a dual relationship[9]
Request for Records of Deceased Clients
Protecting the privacy interests of clients does not end with the client’s death. The social worker needs to be aware of the continuing ethical limitations and legal exceptions to be considered in any request for a deceased client’s records.
HIPAA
HIPAA gives permission for health care providers (including clinical social workers) to release information about deceased clients without consent or authorization in the following circumstances:
- to notify law enforcement of a death that the health care entity believes may have been caused by criminal conduct (45 C.F.R. § 164.512(f)(4))
- to a coroner or medical examiner for the purpose of identifying a deceased person, determining a cause of death, or other duties as authorized by law (45 C.F.R. § 164.512(g)(1))
- to funeral directors, consistent with applicable law, as necessary to carry out their duties with respect to the decedent (45 C.F.R. § 164.512(g)(2).
Disclosing confidential information about a deceased client under the above circumstances is not mandatory. Therefore, seeking written consent to the release of the client’s records from the legal representative of the deceased client is a valid and ethical approach to evidence adherence to legal requirements, even if the information is requested by the police, a coroner or funeral director.[10]
NASW Code of Ethics
The NASW Code of Ethics requires that the confidential records and information of deceased clients be protected according to the same standards that apply to living clients (NASW, 2008, Standard 1.07(r)). The Code permits the release of information upon consent of the client or “a person legally authorized to consent on behalf of the client” (NASW, 2008, Standard 1.07(b)). This may include the executor or administrator of the estate for a deceased individual.
Social work ethical standards, state and federal law, all offer support for the concept that the executor or administrator of the estate of a deceased client has a right to obtain a copy of the client’s clinical record upon offering documentation of their authority to act on behalf of the deceased and providing written authorization to release the records. However, while social workers may recognize that the executor of a client’s will or the administrator of the estate has the authority to request and access confidential client records, there are other options to be considered for responding to such requests. For more information, see Privacy Protections for Deceased Clients’ Records (Legal Issue of the Month, October 2010).
Practice Tips
- *Conduct an adequate client risk assessment for suicide (initial and ongoing)
- *Document how you assess and treat clients who have suicidal ideation
- *Seek consultation when needed and report client’s intent to harm him/herself to an appropriate third party, and document this in the client’s file
- *If you receive notice that the client’s estate or others intend to initiate legal action, contact your professional liability insurance carrier immediately
- *Do not make any statements that assume responsibility because of feelings of guilt or second-guessing your actions
- *Protect the deceased client’s confidentiality. Request documentation and written authorization from the executor or administrator of the estate before you release the client’s records. For more information, see Privacy Protections for Deceased Clients’ Records (October 2010)
- *Provide self-care. Obtain personal counseling related to the experience, if needed, or seek out support in order to reduce any sense of isolation you may feel (e.g., books or publications written for survivors, organizations of suicide survivors[11])
Conclusion
When a therapist learns that a client has died by suicide they may experience a fear of treating suicidal clients, thoughts of leaving the profession, hypervigilance about suicide risk, and/or guilt for failing to prevent the suicide. These feelings can be exacerbated when compounded with concerns about malpractice and other legal issues. It is important that social workers focus on self-care after experiencing such a tragic event. It will also be necessary to request the appointment of counsel from the professional liability carrier if legal action is threatened related to a client who dies by suicide.
RESOURCES
Association of Suicidology www.suicidology.org — The Clinician-Survivor Task Force
DeAngelis, Tori, “Surviving a Patient’s Suicide,” American Psychological Association, Vol. 32, No.10, 70, (2001)
Farberow, Norman L., The Mental Health Professional as a Suicide Survivor (2005)
InnerBody Suicide Facts and Resources https://www.innerbody.com/suicide-facts-resources
Morgan, S. and Polowy, C. (2010), Privacy Protections for Deceased Clients’ Records NASW, Legal Defense Fund, Legal Issue of the Month. Wash., D.C. Author. [Online] http://www.socialworkers.org/ldf/legal_issue/2010/201010.asp
NASW Code of Ethics (2008) http://www.socialworkers.org/pubs/code/default.asp
Reid, William H., Wrongful Death and Suicide (2004)
Sung, Jeffrey C., “Sample Agency Practices for Responding to Client Suicide”
U.S. Public Health Service. The Surgeon General’s Call to Action to Prevent Suicide. Washington, D.C. (1999)
Weiner, Barbara A. and Wettstein, Robert M., Legal Issues in Mental Health Care, 150 (1993). 45 C.F.R. § 164.512(f)(4); 45 C.F.R. § 164.512(g)(1); 45 C.F.R. § 164.512(g)(2)
[1] U.S. Public Health Service. The Surgeon General’s Call to Action to Prevent Suicide. Washington, D.C. (1999)
[2] American Foundation of Suicide Prevention www.afsp.org/understanding-suicide/facts-and-figures
[3] DeAngelis, Tori, “Surviving a Patient’s Suicide,” American Psychological Association, Vol. 32, No.10, 70, (2001)
[4] Farberow, Norman L., The Mental Health Professional as a Suicide Survivor (2005)
{5] Weiner, Barbara A. and Wettstein, Robert M., Legal Issues in Mental Health Care, 150 (1993).
[6] Ibid. at 158.
[7] Morgan, S. and Polowy, C. (2010), Privacy Protections for Deceased Clients’ Records NASW, Legal Defense Fund, Legal Issue of the Month. Wash., D.C. Author. [Online] http://www.socialworkers.org/ldf/legal_issue/2010/201010.asp
[8] Sung, Jeffrey C., “Sample Agency Practices for Responding to Client Suicide.”
[9] Ibid.
[10] Morgan, S. and Polowy, C. (2010), Privacy Protections for Deceased Clients’ Records NASW, Legal Defense Fund, Legal Issue of the Month. Wash., D.C. Author. [Online] http://www.socialworkers.org/ldf/legal_issue/2010/201010.asp
[11] Association of Suicidology www.suicidology.org — The Clinician-Survivor Task Force provides consultation, support and education to mental health professionals to assist them in understanding and responding to their personal/professional loss resulting from the suicide death of a client.
