Beginning with this column, the material presented may be either a forensic or a risk management topic. The plan for specifically addressing risk management issues was formulated by AACAP and the liability insurance company endorsed by AACAP, Darwin Professional Underwriters.
In the future, when the topic is “Risk Management,” that will be the heading of the column. I will still be the author, but the topic will be suggested by Darwin Professional Underwriters, who will review what I have written prior to publication for accuracy in terms of legal and risk management issues. Our goal is to provide information and advice on issues that give rise to professional liability claims and lawsuits. When the material is other than risk management related, the column will be titled, as always, “Forensic Corner,” and will reflect solely my opinions or ideas without outside input.
The first topic is the issue of what constitutes adequate permission to treat, or release information, when seeing children of divorced parents. Here is a hypothetical case. You are contacted by a mother who wants an evaluation of her child due to problems of easy distractibility, impatience, and frequent off-task behaviors both in the classroom and at home. During the evaluation, you learn the parents are in the process of a contested divorce, and the child is distraught about the father having moved out of the home. The child’s symptoms antedated the parental discord. You arrive at a diagnosis of attention deficit disorder, combined type. You present your findings to the mother and recommend medication. She accepts your recommendation and you write a prescription.
After this session, as you are in the process of writing a letter to the referral source summarizing your findings. Your phone rings. It is the boy’s father. He is irate that you have seen his son and are recommending medication without discussing the case with him. The father goes on to say that he is vehemently against the use of mind altering drugs for his child. He forbids you from treating his son. He insists that you not release any information about your evaluation to anyone. Furthermore, he wants you to destroy your notes about the visit, lest there be any record of his son having seen a psychiatrist, as he is concerned that such might have adverse consequences for his son in the future.
After you hang up, you gulp, and then call mother. She is equally emphatic that she wants her son on medication and that she absolutely wants a letter sent to the pediatrician describing your findings and recommendations. You check your file and note that she has signed a valid release of information form, giving you permission to send such a letter. How do you proceed?
Regardless of what you do at this juncture, one parent or the other will be dissatisfied, if not outright furious, with your action. When parents either are married or are divorced with joint legal custody, either parent can authorize, or refuse to authorize, release of any medical information. Similarly, either parent can give or withhold permission for you to treat the child. You now realize that the evaluation should not have been undertaken without authorization from both parents, because they are both still legal guardians of the boy.
However, now that you’ve reached this point, what to do? First of all, do not attempt to treat this child. As a general rule, in order to be of help, both parents must want you to be involved. Where such is not the case, the child cannot form a working relationship with you without risking alienating one of the parents. You do not want to put the child in such a situation. Also, if you do treat the child absent authorization from both parents, you leave yourself vulnerable to being reported to any number of groups: the local or state medical society’s quality of care/ethics committee, the APA, or AACAP, for treating a child improperly or unethically. The headache, heartache, and angst you will go through, not to mention the financial cost, will certainly make you wish you had opted not to treat this child.
You cannot treat the child in this circumstance. The best you can do is suggest to the mother that she work through the legal system, using her attorney and the child’s attorney/guardian ad litem to get a judicial order for treatment. Similarly, you should await a legal order authorizing you to release information before you communicate with the referral source or anyone else. Such an order generally would come from the court. In at least one state, an attorney for the child is able to authorize disclosure.
Do not destroy records. Litigation may be forthcoming and your notes are your best defense. If you have questions, consult your malpractice carrier.
By following these steps, treatment will be delayed. That outcome is neither your problem nor your responsibility. You may render services only when you have been given unequivocal permission to do so. Absent such, you must not act, except in an emergency, as required by law.