A client suffering from major depressive disorder with strong thoughts of suicide or other self-harm, or a mentally ill client who has made threatening remarks about hurting another person (Tarasoff), comes to his therapist’s office at the appointed time and day, only to find the door locked and nobody around. He calls the therapist’s number and hears the standard message to leave a message and the therapist will return the call within 24 hours. (The therapist’s recording should also include a statement that if this is an emergency, the person should call 911 or go to the nearest emergency room for treatment.)
Over the next couple of weeks, the deeply despondent and rapidly deteriorating client repeatedly calls the therapist’s phone number and leaves a number of frantic messages desperately begging the therapist to call him back and set up an appointment or he will kill himself or another person. The client even goes to the therapist’s office several times, each time finding the door locked and no notice or instructions posted on the door.
Despite all of the messages left on the therapist’s voicemail, the client does not receive a call from the therapist. Why not? Because the therapist has suddenly and unexpectedly died from a heart attack or was seriously injured in a traffic accident. But the client doesn’t know this has happened and thinks that his therapist has abandoned him, increasing the client’s distress to the point that the client does in fact commit self-harm (e.g. suicide or attempted suicide) or injures or kills the third person he has been talking to the therapist about hurting.
Having a Plan
What duty does the psychotherapist owe to his or her clients to plan for the client’s care in the event the therapist is killed, severely injured or otherwise rendered incapable of treating or notifying clients? The therapist owes both an ethical and a legal duty to plan for the handling of his or her clients in the case of his or her sudden and unexpected death. Failure to have a plan in place for the continuation of therapy with another psychotherapist may be considered an abandonment of the client.
Therapists who have been diagnosed with a terminal illness, such as cancer and has only a few months to live, often has sufficient time and opportunity to communicate with his or her clients of the impending death or disability and make arrangements with the client to see another psychotherapist or take other steps to avoid an interruption of services.
But what about the psychotherapist who dies or becomes incompetent suddenly and unexpectedly? Such a therapist does not have time to sit down with or call a client to tell the client of the situation and make appropriate plans to avoid an interruption of services.The client in such a situation is caught in the lurch. However, the therapist has an ethical and legal duty to plan for just such contingency.
Most, if not all, professional psychotherapy and counseling associations, have ethical regulations that mandate that the therapist “make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist’s illness, death, unavailability, relocation or retirement . . ..” (Ethical Principles of Psychologists and Code of Conduct section 3.12. See also Section 10.09.)
The therapist usually fulfills this requirement by having a well-prepared and up-to-date “Professional Will” (PW). While every psychotherapist should have a PW, it is particularly important that a psychotherapist in solo practice have one.
Guidelines for what the PW should contain can be found on the Internet. Indeed, sample PWs can be found on the Internet for therapists who wish to make their own PW. These online PWs range drastically in their coverage and length.
It is highly recommended that a psychotherapist have the PW prepared by an attorney experienced in this field. Such an attorney may be found by contacting the professional association to which the therapist belongs. Alternatively, the therapist can contact his or her malpractice insurance carrier for a referral to a knowledgeable attorney.
One of the most important parts of the PW, if not in fact the most important element, is designating the Professional Executor (PE) to implement the provisions of the PW. Ideally, the PE should be a licensed psychotherapist with whom the therapist has a pre-existing relationship. Naming an alternate PE is also a good idea in case the first choice for PE is not available or capable of handling the situation. Before naming the PE and an alternate, talk with them before making your PW to ensure that he or she is willing to act as the PE if the need arises.
A copy of the PW should be given to the PE, alternate PE, the therapist’s attorney, and the therapist’s malpractice insurance carrier. The PE and alternate PE should be made aware of the basics, such as where the keys to the office are, where files on current clients are filed, where files on past clients are stored, passwords to get into computers and other electronic devices requiring passwords.
Even with a PW, one of the hardest things to do is to find information on the names, diagnoses and contact information of all of the deceased or incapacitated therapist’s clients. Spouses, adult children and close colleagues should be informed that the therapist has made a PW and give them the name and contact information of the PE, alternate PE, the therapist’s attorney and the malpractice insurance carrier.
Others who are likely to learn quickly of the therapist’s sudden death should be notified of whom to contact as soon as possible. The PW is not of great value if the PE doesn’t learn of the deceased therapist’s death for several months. Indeed, failure to have a PW is not only an ethical violation, it may also constitute a legal wrong for which the estate of the psychotherapist can be sued.
Clients should be informed as soon as possible after the therapist’s death or incapacity to avoid an interruption of services. When a therapist suddenly and unexpectedly dies, as soon as he or she learns about it, the PE should post a notice on the deceased therapist’s door stating something to the effect that “Clients of [deceased or incapacitated therapist’s name] are directed to call [PE’s name and telephone number] for important information.”
The message on the deceased or incapacitated therapist’s telephone voicemail should be changed, directing the caller to call the PE or other person. In the case of a therapist’s death, stating on the recording that the therapist has died is not recommended because of the sudden shock to the clients and confusion of what they should do. Therefore, it is better to hear of the therapist’s demise or incapacity from a “real” person, preferably the PE, who can help the client make the transition to another psychotherapist.
This approach is especially true in cases where the client is at risk of self-harm or harming others. Such client needs to be informed as soon as possible of the therapist’s death or other unavailability and referred to another licensed therapist to minimize the interruption of services and the exacerbation of the client’s mental state.
The PW is not a “one and done” document. At the very least, the PW should be reviewed every few years to ensure it is up to date with changing rules, regulations, and law, as well as changes in the therapist’s clientele and their contact information, as some clients may have terminated therapy while others have started. Any time there is a major change that affects the provisions of the PW (such as the death or other unavailability of the therapist named as the PE), the PW should be amended or a new one prepared to incorporate the changes. Malpractice insurance carriers may require a PW every year with renewal of an existing policy or a new insurance company.
When a psychotherapist suddenly and unexpectedly dies, there are a number of issues regarding the confidentiality of the clients’ records, which is beyond the scope of this article.
Allen P. Wilkinson, a California attorney since 1979, lives in Laguna Woods, California. He has written extensively on legal topics in psychiatry, clinical psychology, and psychotherapy and is the co-author with the late attorney Melvin Belli of the best-selling Everybody’s Guide to the Law. His e-mail address is [email protected]