The Liability of Alaska Mental Health Providers for Mandated Treatment

• Publication year: 2003

§ 20 Alaska L. Rev. 271. THE LIABILITY OF ALASKA MENTAL HEALTH PROVIDERS FOR MANDATED TREATMENT

Alaska Law Review
Volume 20
Cited: 20 Alaska L. Rev. 271

THE LIABILITY OF ALASKA MENTAL HEALTH PROVIDERS FOR MANDATED TREATMENT

MARSHALL L. WILDE ^[*]

INTRODUCTION

II. FACTUAL AND LEGAL BACKGROUND

III. EVALUATIVE FUNCTIONS: QUASI-JUDICIAL IMMUNITY

IV. CONTINUING TREATMENT: DUTIES OWED TO THE PATIENT BY THE MENTAL HEALTH PROVIDER

A. Confidentiality

B. Informed Consent

C. Care

V. SPECIAL CONSIDERATIONS UNDER FEDERAL LAW

VI. CONCLUSION

FOOTNOTES

This Article analyzes the liability of mental health professionals for services rendered to patients who are ordered by a court to undergo mental health treatment. After a brief review of relevant legal authority, this Article examines mandated treatment under the framework of quasi-judicial immunity and continues by discussing the specific duties of mental health professionals to patients undergoing mandated treatment. The Article also comments on the unique issues that arise from treatment of patients under federal benefit programs. The Article concludes by arguing that mental health professionals do not enjoy a blanket exemption from malpractice liability and by suggesting a cautious course of action for such professionals.

INTRODUCTION

Court-ordered treatment programs for substance abuse and mental illness have become a popular tool to achieve the goals of the criminal justice system: to punish, rehabilitate, and deter criminal behavior. In Alaska, mental health providers serve an essential role in determining the disposition of offenders, minors, and incompetents, and have traditionally enjoyed immunity for their duties in these roles. ^[1] Outside the protection of immunity, mental [*pg 272] health providers also treat individuals who have been involuntarily committed or who are voluntary patients. ^[2] Difficult questions arise concerning a provider's liability when a patient does not fit into one of these categories. Provider liability is often an issue when treatment is made a condition of parole, custody, or another legal benefit, or when a patient receives mandated mental health care while still living in the community. ^[3]

This Article addresses a provider's liability for treating patients ordered to undergo mental health treatment. The Article begins with a brief review of the legal authorities for mandated treatment and then examines mandated treatment under the framework of quasi-judicial immunity. Next, it addresses the individual duties of a provider to a patient in mandated treatment and concludes with a discussion of the unique issues arising from treatment of patients under federal benefit programs.

II. FACTUAL AND LEGAL BACKGROUND

Alaska law provides for mandated treatment for mental health conditions that do not rise to the level of legal insanity. Under state criminal law, a defendant may be ordered into counseling as a condition of a suspended imposition of sentence, ^[4] probation, ^[5] or parole. ^[6] Additionally, in a "child in need of aid" ("CINA") case, counseling or drug and alcohol treatment may be a mandatory condition for regaining parental custody of children. ^[7] Such condi-[*pg 273] tions not only require a provider to perform evaluative functions, but also to recommend and implement a course of treatment.

Federal law adds additional categories of "mandated" patients. Since the federal government makes almost one-third of all health expenditures in Alaska, considerations of federal law are important. ^[8] Given the large military presence in Alaska, providers may treat pursuant to both federal and military law. Under the Department of Defense Directive No. 6400.1, ^[9] and those regulations specific to each branch of service, commanders may mandate treatment for service members in cases of substantiated spousal or child abuse. ^[10] The military may also require treatment as a condition of parole. ^[11] In addition to those treatment programs, there are several federal agencies funded by the Department of Health and Human Services, such as the Indian Health Service's ("IHS") Substance Abuse and Mental Health Services Administration, that also implement several forms of mandated treatment. ^[12] Although IHS does not have the judicial power to mandate treatment, many Alaska Natives and Native Americans, who have already been required to complete substance abuse or similar programs, utilize the services provided by IHS. ^[13] In both of these contexts, a provider is required to provide treatment in addition to evaluating a patient.

III. EVALUATIVE FUNCTIONS: QUASI-JUDICIAL IMMUNITY

In the same way judges generally have immunity from personal liability for actions done in the course of their official duties, judicially-appointed professionals, including mental health providers, are also protected from malpractice liability when they assist in making a judicial decision. ^[14] Such judicial decisions include: (1) de-[*pg 274] terminations of criminal competency; (2) determinations of sufficient mental states for civil liability; and (3) determinations of mental fitness in child custody proceedings. ^[15]

The Alaska Supreme Court recognized "quasi-judicial immunity" for mental health providers in Lythgoe v. Guinn. ^[16] In that case, Defendant Guinn, a psychologist who had been appointed as a child custody investigator, was alleged to have engaged in certain misconduct. ^[17] The defendant investigated a dispute between Plaintiff Lythgoe and her ex-husband over the custody of their son. ^[18] The defendant recommended that the ex-husband receive custody. ^[19] The plaintiff then sued, claiming that, inter alia, the defendant acted as an advocate for her ex-husband, thereby forfeiting any immunity she might have had. ^[20] Rejecting the plaintiff's argument, the court held that the defendant "served as an 'arm of the court'" and performed a "function 'integral to the judicial process,'" ^[21] and thus had quasi-judicial immunity for her actions as they related to the case. ^[22]

The court also cited several public policy considerations relevant to extending judicial immunity to those acting in a quasi-judicial role. ^[23] First, the court approved a policy issue identified in Seibel v. Kimbal: exposure to liability may deter quasi-judicial officers from accepting court appointments. ^[24] The Seibel court held in favor of the mental health provider, recognizing that unless insulated from liability, providers would be less likely to accept judicial [*pg 275] appointments for mental health evaluations. ^[25] Second, the Lythgoe court considered whether exposure to liability would taint the expert's exercise of discretion in his actions and testimony. ^[26] The United States Supreme Court has commented on the importance of such discretion in determining quasi-judicial immunity: "[w]hen judicial immunity is extended to officials other than judges, it is because their judgments are 'functional[ly] comparab[le]' to those of judges -- that is, because they, too, 'exercise a discretionary judgment' as a part of their function." ^[27] Upholding this same principle, the Alaska Supreme Court held that "[t]he sine qua non of the exercise of such discretion is the freedom to act in an objective and independent manner." ^[28] Third, the court recognized that the threat of liability may cause quasi-judicial officers to be unduly inhibited in the performance of their functions. ^[29]

Following Lythgoe, the Alaska Supreme Court ruled in Karen L. v. State ^[30] that two doctors who evaluated both parties in a CINA proceeding were immune from tort liability. ^[31] The court held that the selection process for the physicians was irrelevant; it did not matter whether the court or the parties selected the physicians. ^[32] Rather, the question was "'whether [the doctor's] activity is an integral part of the judicial process so that to deny immunity would disserve the broader public interest that non-judicial officers act without fear of liability.'" ^[33]

While the Alaska Supreme Court has not enumerated a clear test for applying quasi-judicial immunity, both Lythgoe and Karen L. appear to employ two common elements: (1) the officer must be an arm of the court, "integral to the judicial process" ^[34] ; and (2) the actions of the officer must involve some degree of discretion, the [*pg 276] free exercise of which would be deterred by the threat of liability. ^[35] However, the courts have not identified these elements as such, or how these elements apply to continuing treatment. For example, a court has not yet addressed the issue of which provider actions, done in the course of implementing court-mandated treatment programs, will qualify for quasi-judicial immunity. ^[36] Courts have not considered the immunity issues surrounding continuing care beyond mere evaluation. Thus, the doctrine of quasi-judicial immunity protects a mental health provider when rendering an opinion necessary for adjudication, but does not necessarily protect a provider in his continued treatment.

IV. CONTINUING TREATMENT: DUTIES OWED TO THE PATIENT BY THE MENTAL HEALTH PROVIDER

Mental health providers have three primary duties with respect to their patients: (1) maintaining confidentiality; (2) ensuring informed consent; and (3) maintaining professional standards of care. ^[37] A court mandating...