This excellent book is organized in
two parts.  The first is an introduction to the law, with a focus on the famous
Tarasoff decision and its effect on New York law, and a long chapter on
privacy, confidentiality and testimonial privilege.  The second, longer part
consists of ten chapters on different areas of the law, organized in the form
of question and answer.

Since I have no legal expertise, I
cannot judge the accuracy of the analysis of New York law, although since the
authors are affiliated with prestigious institutions (Harvard Medical School, New
York Law School, and the Mental Hygiene Legal Service for the First Judicial
Department, covering Manhattan and the Bronx) and the publisher is reputable,
one has reason to trust the information in the book.  Of course, it is in the
nature of such books to simplify the details, so it would be unwise to rely on
this book only if one’s career rested on a decision.  As the disclaimer on the
copyright page says, the book cannot substitute for the consultation of an
attorney knowledgeable in mental health law.  What the book does provide is an
excellent outline of the main principles of the law concerning the central
areas of clinical practice. 

The Essentials of New York
Mental Health Law is sensitive to issues often neglected in brief surveys
of the law.  To take an example probably familiar to most clinicians, the
authors describe the decision of the Supreme Court of California in Tarasoff
that a psychotherapist has a duty to third parties to protect them from
foreseeable harm.  The authors point out that the duty to protect is not
necessarily the same as the duty to warn, especially when warning a victim
could increase the chance that he or she will be harmed.  They also note,
parenthetically, that Tatiana Tarasoff’s murderer, Prosenjit Poddar had his
second-degree murder conviction overturned five years after his trial, and the
prosecutor struck a bargain with his attorney in which Poddar returned to India
and would never return to the United States rather than be retried.  They
report that Poddar is now married. 

Laws concerning confidentiality
between therapist and client vary from state to state, and the legal duties of
clinicians in New York are different.  Of particular importance is the New York
Mental Hygiene Law, which makes the reporting of dangerous clients to third
parties permissible but not mandatory.  Other crucial legal cases in New York
leave it unclear whether professionals have a duty to protect third parties. 
The law is more specific in the cases of clients who are abusing or neglecting
children or seriously impaired individuals, stating that clinicians have an
obligation to report such cases.  The authors explain this law in some detail.

The second part of the book is more
directly aimed at the legal questions of clinicians.  It spells out the
criteria for civil commitment and essential terms such as "informal
admission," "voluntary admission," "emergency
admission," "2-P.C. admission," a "72-hour letter,"
and a "Rivers proceeding."  It goes into Kendra’s Law,
criminal insanity, guardians and substitute decision makers, HIPAA,
record-keeping, professional responsibility, and the rights of children and
families.  Most of the questions and answers stick to practical issues.  The
questions include the following:

·       
Who may ask that a guardian be appointed?

·       
Does a guardian have the authority to admit an incapacitated
person to a psychiatric hospital?

·       
I am a psychologist who does psychological testing.  Does HIPAA’s
definition of psychotherapy notes include raw test data?

·       
How long should a mental health practitioner retain records?

·       
What right does a parent or guardian have to review the records
of an adolescent patient?

·       
Is it a crime for a psychotherapist to become sexually involved
with a patient?  [Answer: not in New York.]

·       
I have just received a managed care contract.  Should I have a
lawyer read it first?

·       
Can I bill for a session that I have refused to hold because the
patient arrived at my office under the influence of drugs or alcohol?

·       
Can a minor consent to treatment?

The answers to these questions are written in plain English
and should be accessible to most professionals.   Of course, the realities of
actual practice often involve complexities that the list of 300 questions and
answers do not address, and so the book can only serve as a guide to the law in
most cases, rather than a set of exhaustive instructions.  Those looking for a
more fundamental analysis of the foundations of mental health law will also
need to look elsewhere, since the authors rarely attempt to address the
underlying thought of the law’s framers.  Nevertheless, The Essentials of
New York Mental Health Law is extremely informative and will very likely
become a much-used resource by mental health professionals in New York State.

 

© 2004 Christian Perring. All
rights reserved.

Christian
Perring, Ph.D., is Academic Chair of the Arts & Humanities
Division and Chair of the Philosophy Department at Dowling College, Long Island. He is also
editor of Metapsychology Online Review.  His main research is on
philosophical issues in medicine, psychiatry and psychology.

Categories: Ethics, MentalHealth