Q.

Periodically the question comes up regarding the best way to deal with clients who have prior criminal records.  As you might expect when treating individuals with substance abuse problems and/or serious mental illness, we will occasionally be treating individuals who have committed serious crimes in their past.  Over time this has included sexual and physical assaults, manslaughter and murder.  They have completed their jail and/or prison time and may still be on parole.  We may be seeing them in our O/P office or therapeutic rehabilitation program, and/or housing them in our transitional housing or regular apartments.  Though we have not had much media or public interest in the criminal records of our clients for some time now, we know a real "Not in My Backyard" phenomena can quickly spring up.

Has the MHRRG developed any materials around best practices for dealing with these situations?  We're wrestling with how much need-to-know internally there is for upper level management around clients past criminal records.  Given no existence of the communication of any type of threat on our client's part, do we have any responsibility to notify the community or police if we have someone under our care or living in one of our residences who has a serious criminal record?  If we have such a client and they perform another criminal act while in our care, how much can we be held liable?  What rights does the individual have regarding confidentiality of their criminal record?  Is their treatment record totally confidential unless court ordered to be produced?

We don't want to become an arm of the police and court system and need to keep our functions separate, yet we want to be good neighbors who help keep the community safe.

Are there any best practices you can share with us or direct us to?  Are you aware of any of the MHCA members who have a good system of best practices around this issue?
 

A.

You told me the following: Your community mental health center treats patients who have criminal histories. Some of these patients are tenants in housing owned by the Center. You receive patients who are sent to you by court order.  In some instances patients are ordered to treatment and may be subject to penalties for not complying with the order.  In other instances patients may be sent to you involuntarily for outpatient treatment. You provided me with a copy of your state statutes concerning the duty to warn or protect, the counselor/client privilege and the psychotherapist/patient privilege.

You have a number of questions.  What rights does the individual have concerning confidentiality of their criminal record?  Is their treatment record totally confidential unless court ordered to be produced? May your treatment staff inform your apartment leasing staff about the criminal histories?  Do you have any responsibility to notify the community or police that your patients have criminal records? What can you do to minimize potential liability exposure with these patients?

Confidentiality of mental health treatment records is generally governed by state statute. Federal regulation also protects the confidentiality of treatment records of persons with alcohol and drug abuse problems.  Typically a state will have statutes protecting mental health patients from disclosure of their records in court proceedings.  The counselor/client and psychotherapist/
patient privilege statutes you sent me are examples of these types of statutes.  Of course, the statutes have exceptions. Additionally most states also have statutes specifically addressed to the confidentiality of records of a community mental health center such as your own.  You did not send me a copy of this type of statute.  You should review your statute to be sure you are in compliance. 

Generally, criminal histories are not confidential because they are a matter of public record.  Thus you should not be concerned about giving information about criminal histories to staff, including housing staff, who provide treatment or services.

Nonetheless, it is prudent to discuss criminal histories only with staff who have a need to know. Studies indicate that a history of past violence is a risk factor for future violence. Therefore criminal histories can be relevant to the question of whether or not a patient's threats of future violence are serious.

Your statute imposes a duty to warn when "the patient has communicated to the qualified mental health professional an actual threat of physical violence against a clearly identified or reasonably identifiable victim." There is a duty to protect when "the patient has communicated to the qualified mental health professional an actual threat of some specific violent act." Staff members who may have to decide whether or not a threat is "actual" should have information about the patient's past criminal history.

The duty to warn statute and the confidentiality statutes define your duties to disclose information about your patients. The statutes you sent me do not create a general duty to inform the public or law enforcement that your patients have criminal histories.

Because criminal histories are a matter of public record they are not protected from disclosure simply because you have a copy in your treatment records.  It is prudent, however, to refer persons requesting information about patient criminal histories to public record sources such as clerks of the court.  If you make such referrals you should be careful to comply with confidentiality laws insofar as they may protect a patient from disclosure of his identity as a patient.

When you receive a patient pursuant to a court order it is important to review carefully the provisions of the order.  Sometimes these orders contain provisions directed to mental health centers.  Unless the court has provided your center with lawful notice and an opportunity to be heard the judge has no authority to order your center to do anything. 

Nonetheless, judges seem to routinely issue orders purporting to be binding on mental health centers who treat court ordered patients.  If you receive such an order and do not comply with it or challenge it there is an increased risk of liability in the event a patient harms a third party.

Therefore, I suggest that you assign one individual to coordinate receipt and review of all court orders and to ensure compliance.  If for whatever reason you cannot comply or do not want to comply you should challenge the order.

Sometimes a center accepts responsibility to comply with a court order and then as time passes and staff turnover occurs compliance slips. If you do accept responsibility to comply with court orders you should have a system to track the orders over an extended period.