Death is a hard topic. I am certain that for mental health practitioners it is a subject that you have helped clients cope with during therapy sessions. What happens, though, when it is your client who passes? As a mental health practitioner and healthcare professional it can be difficult to deal with the loss of a client regardless of the manner of death, particularly if it was a client you developed a long-term clinical relationship with. For some, it can be a bewildering time as you try to figure out what exactly your role and obligations are, while trying to sort through your own sense of loss or grief. Yet, avoidance is not an option in this situation.
Clients dying is an unfortunate reality, and over the course of a long practice, it is likely inevitable. Statistically, one in five mental health professionals will lose a client to suicide over the course of their career. To quote the Dalai Lama, “If you are mindful of death, it will not come as a surprise, you will not be anxious.” So being prepared and knowing what to do if a client passes, is of utmost importance not only for your own well-being, but for your license and your practice.
When a client passes away you may feel pressured to disclose information about their treatment, why they were seeing you, and other confidential protected health information, known as PHI. It is important to remember, though,that your duty to your client does not end with their death. Instead, you remain obligated by both your professional ethics and by state and federal laws to understand and observe the duty to confidentiality.
It certainly is an extremely challenging circumstance to deny a deceased client’s loved ones the information they are desperately seeking about the client. As a therapist, you are trained to help and provide comfort, and you may feel an urge to do that for a deceased client’s loved ones. That is certainly understandable and to some extent, you may do that; however, you must remain diligent to your professional and legal obligations to maintain your client’s right to confidentiality and protecting their health records.
Disclosing protected health records and information of a deceased client without the proper authorization is a violation of HIPAA and Maryland state laws, regardless of the fact that the client is deceased. HIPPA explicitly states that clients have the same privacy and confidentiality rights in death as they do in life. In fact, HIPAA requires that a client’s PHI remain confidential for 50 years following their death. HIPAA, however, does allow the release of information and health records under certain circumstances: to those whom the client granted authorization to, in writing, prior to their death, to an identified and authorized Personal Representative of their estate, or to those whom the Personal Representative gives consent for release to, on the deceased client’s behalf. But wait, you say—what is a Personal Representative?
Many people while alive have a will prepared and executed. One of the features of a will is that it names a Personal Representative, also referred to as an executor or administrator, to act in the person’s place and handle their affairs and their estate after their passing.
It is very important, though, to remember, your role is as a mental health practitioner and authorized custodian of your deceased client’s PHI. You may find that upon the passing of a client, a family member or loved one may present you a client’s Will, claiming they are the Personal Representative and requesting you to release the health information and records to them or another party. You might feel like you are obligated to accept the will at its face value as authentic and be tempted to comply with their request. This is definite dangerous grounds as a wrong decision by you has the potential to expose you to liability.
Consider a circumstance where someone presents themselves as the Personal Representative of a deceased client and presents a Will, which later proves to be fraudulent. It is possible that the Will could still be contested and the Courts might ultimately appoint a Personal Representative other than the person asking you for your client’s records and information. In that circumstance, legally appointed Personal Representative willhave the authority to pursue legal remedy against you and possibly your license, if you wrongfully released a client’s confidential records and information to another claiming to be the Personal Representative.
Your role is that of the custodian and protector of your client’s PHI, you are not an attorney. Thus, you should not be reviewing a Will to determine if it is valid and authentic, nor be making a determination about the validity of a person’s claim as a Personal Representative. It is the job of the Courts to authenticate a Will and establish the authority of the Personal Representative. Only then, once the legal Personal Representative is identified by the Courts, will a Letter of Administration be granted to the Personal Representative. The Letter of Administration provides them the power to act on the deceased’s behalf and make authorized requests for things like a client’s health records.
If there is not a Will, then the Courts will identify a Personal Representative to act on the client’s behalf. Without a Will, there is no Personal Representative even assumed despite what one might claim. The court has a process to figure this out and it is important to let them. Whomever the Court eventually identifies as the Personal Representative, shall again be given legal documentation verifying their role. Only then will they have the right to request of you a release of the client’s records or information.
Also, important to know is that a court subpoena or request for records by an attorney does not obligate you to release a deceased client’s records. The same confidentiality applies in death as in life. However, a court order likely will obligate you. When making these sensitive decisions, you should always consult an attorney. Don’t make these decisions on your own.