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Related Topics
The Essentials of New York Mental Health LawReview - The Essentials of New York Mental Health Law
A Straightforward Guide for Clinicians of All Disciplines
by Stephen H. Behnke, Michael L. Perlin and Marvin Bernstein
W.W. Norton, 2004
Review by Christian Perring, Ph.D.
Apr 22nd 2004 (Volume 8, Issue 17)

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.


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