Responding to Mental Health Emergencies: Legal Considerations
When a patient is having an active mental health emergency, what are your obligations? What does the law allow? We address some common questions.
As a healthcare professional, you’re no stranger to tricky situations. But when a patient experiences an active mental health emergency, it’s hard to know how to respond. The unknowns only increase if you’re seeing the patient over telehealth or the patient is sending you messages after hours.
You know you have a duty to act in the patient’s best interest and protect their well-being. But it isn’t always crystal clear how to carry out that duty.
What obligations do healthcare providers have in mental health emergencies? What is legal? Are you allowed to share patient information to get help? In this article, we address some common questions.
Question: Does HIPAA allow me to call my patient’s emergency contact if I think they’re having a mental health emergency?
Yes, but only under certain circumstances, such as when a patient is an imminent danger to themselves. In this situation, HIPAA’s Privacy Rule allows a healthcare provider to disclose the necessary protected health information (PHI) without the patient’s permission. The provider can share the PHI with anyone who is in a position to prevent or lessen threatened harm to a patient, including family, friends, caregivers, and law enforcement.
There are a few takeaways from HIPAA’s determinations.
- It’s up to the provider to determine whether the danger is imminent and whether disclosure is in the patient’s best interest.
- You can’t share the information with just anyone, only with those who can prevent or lessen the patient’s harm.
- HIPAA’s “minimum necessary” rule still applies. Providers must limit the disclosure to what is necessary to address the situation.
View this video for a discussion of HIPAA’s minimum necessary standard.
HIPAA isn’t the only law governing when you can and cannot share information — state laws may also impose limits. Therefore, it is crucial to understand what laws might apply before crises arise.
Question: Should I ask my patients to sign a privacy release in case I need to contact someone about their mental health emergency?
While there are situations where a patient’s consent is not required to release information, a privacy release can be helpful. Introducing a release of information form brings the patient into the decision-making process. It also helps you understand the patient’s preferences for involving others in their care.
Some patients might hesitate to agree to information-sharing in advance. In these instances, have a conversation with the patient about your goals for protecting their well-being. You can also educate them about the legal guardrails designed to protect their privacy.
Question: My patient is having a mental health crisis and says I can’t tell anyone. I don’t think they have the capacity to make such decisions. Do I have liability if I notify someone?
Typically, patients have the right to make decisions and refuse treatment. However, if the patient lacks capacity, you may be able to notify someone and get the patient help.
State restrictions vary. However, under HIPAA, when a patient is incapacitated, a health care provider may share the patient’s information with family, friends, or others involved in the patient’s care or payment for care. But again, the health care provider must determine that doing so is in the patient’s best interest.
Note that when involving someone other than a friend or family member, the health care provider must be reasonably sure that the patient has asked the person to participate in their care or payment for care.
Whether the disclosure is within the patient’s best interests is a subjective standard. It relies heavily on the provider’s experience and judgment. Ideally, providers should develop a decision-making framework for these situations before problems arise.
Ultimately, it’s critical whether or not the person has capacity. Say that an adult who has capacity directs you not to tell anyone. If the individual isn’t an immediate risk, you may be restricted from sharing information about their mental health, even if you think it would be helpful.
“Who decides capacity?” you may ask. HIPAA places this decision on health care providers acting in their professional judgment. However, the Department of Health and Human Services states that providers should still consider a patient’s prior stated preference for disclosing their information.
Question: If I think my patient should be placed on an involuntary hold for their safety, will that give them a criminal record? Will I have to testify in court?
There’s a lot of public policy discussion about bringing police into mental health matters. And recommending an involuntary hold is never an easy decision.
Exactly how an involuntary hold works depends on your state’s specific laws. Still, an involuntary hold for mental health purposes is not a crime. While the hold and its proceedings will be recorded, it will not be part of a criminal record.
If you think that an involuntary hold is best for the patient’s safety, you may have to testify to that belief in court. Some states, like Illinois, require a mental health professional who has examined the patient to testify before a hold is placed.
What can you disclose if you’re summoned to court to give testimony? HIPAA contains exceptions that govern sharing PHI with law enforcement officers or in court proceedings. When these exceptions apply and what information you may share depends on the situation. An attorney can help you understand how best to respond to these requests.
Question: I’m worried my patient will think I “told on them” and won’t trust me again. Do I violate my ethical rules by possibly destroying our therapeutic relationship?
In a crisis, you may need to risk your patient’s trust to prevent worse harm. Most states have practice acts that explain scenarios in which providers can break confidentiality to prevent harm to a patient. Your state’s licensing board may even have a hotline or resources to help define ethical behavior in legally tricky situations. Many providers find it helpful to consult with peers in the field. Additionally, your healthcare attorney can work with you to formulate an appropriate action plan.
Communicate with patients about your obligations and interest in their well-being before emergency situations arise. Being upfront and transparent with your clients helps set expectations. Start by having detailed intake forms and client consents that address these issues. But note that it’s not just a matter of having clients sign a piece of paper or check a box. Your policies and procedures should be part of the informed consent conversation at the start of treatment.
Get legal support.
If you find it challenging to balance your professional concerns, the patient’s wishes, and the legal risks, a healthcare lawyer can guide you through your options. If you operate in one of the states where Jackson LLP has licensed attorneys, you can schedule a free consultation to find out how we can help.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.