April 1st, 2017

Court decision prompts bill on disclosure

Legislation introduced in the Vermont Legislature this session is meant to provide clarity on what a mental health professional’s duty is to disclose information concerning a client. A Vermont Supreme Court decision in 2016 made it unclear.

The Vermont Supreme Court was asked to rule on the case that stemmed from an assault in 2011 of Michael Kuligoski by a former patient of Battleboro Retreat after the patient was discharged from the mental health facility and was undergoing outpatient treatment with Northeast Kingdom Human Services.

The suit (Kuligoski v. Brattleboro Retreat, 2016 VT 54A) claimed Brattleboro Retreat and Northeast Kingdom Human Services failed to warn others of the danger the patient posed, failed to train the patient’s parents in how to handle the patient, as well as failure to treat, improper release and negligent undertaking, according to the court decision.

Kuligoski was assaulted while working on a furnace at a property owned by the patient’s parents and suffered serious injuries from the attack.

“The Kuligoski decision significantly changed the obligations of mental health providers and others involved in the care of people with mental illness, as well as impacting the privacy rights of those with mental illnesses,” said Karen Barber, general counsel with the Vermont Department of Mental Health, in an email.

“Before this decision, providers had clear guidance about their obligations – the duty to warn was triggered when a mental health professional knew or should have known based on the standards of their profession that a patient posed a serious and imminent risk of danger to an identifiable victim. This warning was consistent with HIPAA  privacy requirements.”

Melissa Bailey, MA, commissioner of the Vermont Department of Mental Health, said this new legislation aims to re-establish long-standing requirements related to violence or other concerns. The ruling as it stands “puts the burden on the provider to predict potential violence,” she said.

Barber said the court decision added additional duties on mental health providers, who must now provide caregivers in the patient’s treatment plan information on the patient’s risk of violence and “reasonable information to enable them to fulfill their role in keeping a patient safe.”

That concerns many mental health care providers as it “no longer requires the risk be serious or imminent,” Barber said. “This puts providers in a position of either violating federal HIPAA law or this new case law.”

The ruling also did away with a requirement that a potential victim be identifiable, said Barber. It “instead requires mental health professionals to essentially guess who may be a victim,” she said. “As for caretakers, the decision potentially sets up a situation where they could be held liable for the actions of the person they are caring for which will likely make caretakers less willing to take on this role and thus leave patients without the supports they need.”

The state has seen dramatic increases in the length of stays at psychiatric hospitals since the court decision, Bailey said.

The decision has created “a chilling effect on the entire mental health system,” according to the Vermont Medical Society, which represents 2,000 physician members in the state.

“Clients are less likely to walk through providers’ doors because of HIPAA concerns; more people are being EEed
(the first step to be civilly committed), hospitals and residential programs take longer to release patients; and therapists, family members and community providers are less likely to take on challenging clients because of unknown liability,” reads a document from the organization emailed to
New England Psychologist. “This decision is threatening the civil liberties of patients and creating a backlog in care.”

The legislation, (S.3) is meant to “impose a duty on mental health professionals to take reasonable precautions when a patient poses an imminent risk of serious danger to a reasonably identifiable victim,” according to the bill. It recenlty moved to the House Committee on Health Care after Senate passage.

By Rivkela Brodsky

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