ELIZABETH CRAMER, ESQ., ASSOCIATE
MAXWELL BILEK, ESQ., PARTNER
Wilson, Elser, Moskowitz, Edelman and Dicker, LLP
State laws impose legal duties on physicians, psychologists, and other mental health professionals to report certain individuals who may endanger public safety to state agencies or authorities. Such laws vary from state to state but commonly require the reporting of patients who may be unsafe to drive by reason of disease or disability and the reporting of known or suspected child abuse. Health professionals are uniquely situated to identify these dangers and, arguably, have a responsibility to make their concerns known in order to protect both their patients and the general public from harm.
State laws can impose mandatory reporting requirements (which leave no room for professional discretion), or permissive reporting requirements (which give the professional the option to report or not report). These legal duties may often conflict with professional ethical duties to respect patient or client autonomy and protect confidentiality. The doctor or mental health professional must therefore balance the requirements imposed by state law against ethical obligations to their patients, also taking into consideration any duty they might have to protect third parties from known or potential harm.
Reporting Unsafe Drivers
An estimated 42,060 people died in motor vehicle collisions in the United States in 2020. Intoxication and preventable dangerous driving habits account for a number of these fatalities, but disease and disability are implicated as well. Medical and psychological conditions that impair, or have the potential to impair, driving ability are an important concern for healthcare professionals.
In certain situations, medical and mental health providers are uniquely situated to identify drivers with compromising diseases and disabilities and evaluate the extent to which those diseases and disabilities may impact driving ability. As such, providers have an arguable duty to protect public safety by reporting their concerns to the appropriate state agency. Patients who should potentially be reported and restrained from driving include those with conditions such as dementia, substance abuse or dependency, patients with an episodic disability such as epilepsy or cardiac dysrhythmias, patients who are visually impaired, and patients with psychosis or dissociative disorder. Patients who are taking certain psychotropic medications with side effects that have the potential to impair driving, such as drowsiness and fatigue, must also be explicitly warned about those effects and their impact on driving ability.
The American Psychiatric Association has published an official position statement on the role of psychiatrists in assessing driving ability. While noting that the presence of a mental disorder does not, by itself, signify impaired driving capacity, the APA does acknowledge that persons suffering from mental disorders may experience symptoms that impact their ability to safely operate a motor vehicle. Therefore, when appropriate, psychiatrists should (1) discuss with patients, family members, and caregivers any symptoms that may impair driving ability; (2) warn patients about the effects of medications on alertness and coordination; and (3) prescribe medications with low potential for impairing driving ability when clinically appropriate. Finally, the APA recommends that psychiatrists comply with state laws that require them to report patients who are unsafe to drive.
The American Medical Association’s Code of Medical Ethics recognizes that physicians have a responsibility “to recognize impairments in patients’ driving ability that pose a strong threat to public safety and which ultimately may need to be reported to the Department of Motor Vehicles.” Doctors are advised to become familiar with reporting laws in their states and consider the best interest of the patient and the general public when considering a report.
State Laws Governing the Reporting of Impaired Drivers
States provide varying levels of legal guidance regarding the reporting of cognitively or medically impaired drivers. Virtually all states have enacted laws related to this subject. The majority encourage reporting but do not make it mandatory.
Some mandatory and permissive driver reporting laws apply only to physicians, not other healthcare providers or mental health professionals. For example, Delaware requires physicians to report patients who are subject to losses of consciousness due to a disease of the central nervous system. New Jersey and Nevada similarly require physician reporting of patients with epilepsy.
Other reporting laws have wider applicability, imposing a duty to report on any professional with the ability to diagnose or treat physical and mental disorders. Pennsylvania requires all physicians and other persons authorized to diagnose or treat disabilities or disorders to report a patient who has been diagnosed with a condition that could impair his ability to safely operate a motor vehicle. Oregon requires physicians and health care providers to report a person whose “cognitive or functional impairment” affects his ability to safely operate a motor vehicle. The plain language of these laws suggests that they impose a duty to report on mental health professionals as well as medical professionals.
In California, doctors must report patients diagnosed with any condition marked by lapses of consciousness. Doctors are also permitted, but not required, to report patients upon a good faith belief that doing so will serve the public interest. In 2006, the State Appellate Court applied this discretionary provision of the law to protect a physician from civil liability when the physician reported a patient with “mild congenital or developmental brain damage” that the physician believed created a danger behind the wheel. While California’s law only applies to physicians, the court’s holding provides useful guidance to other health care professionals who opt to voluntarily report a patient or client they deem unsafe.
Potential Consequences for Failing to Report
Failure to report may lead to professional liability if the driver is involved in an accident and injures a third party. For example, a jury in California returned a $3.14 million dollar verdict against a neurologist when his patient suffered an epileptic seizure behind the wheel and lost control of the car, paralyzing the passenger of the vehicle, killing another driver, and injuring three others.
Courts have also imposed liability for motor vehicle accidents on doctors for failing to properly treat a patient’s condition and failing to warn a patient about the side effects of a medication. These decisions could easily be extended to apply to mental health professionals, especially in states with mandatory or permissive reporting laws.
In a broader context, courts in many jurisdictions hold that mental health professionals have a duty to protect against the conduct of a patient for the benefit of third parties. The determining factor in these cases is whether a “special relationship” exists between the actor (the professional) and the person who harms a third party (the patient), and whether the risk of harm is foreseeable. The most frequently cited case on this issue is Tarasoff v. Regents of the University of California. There the California Supreme Court held that mental health professionals have a duty to protect individuals who are being threatened with physical harm by a patient.
The Tarasoff case involved a University of California graduate student who confided to his psychologist that he planned to kill his ex-girlfriend. The psychologist wrote to campus police, informing them that the patient was suffering from acute and paranoid schizophrenia and recommending he be civilly committed. No warning was issued to the ex-girlfriend or her family. The patient was committed for a short period of time, released, and eventually carried out the murderous plan he had confided to the psychologist.
The Court determined that mental health professionals have a duty to their patients as well as individuals who are threatened by their patients. The professional may fulfill this duty in several ways, including notifying the police, warning the intended victim, and taking other reasonable steps to protect the person in danger. The Tarasoff Court acknowledged that mental health professionals have a competing duty to protect the confidences of their patients but noted that, “[t]he protective privilege ends where the public peril begins.” This decision has since been adopted by the majority of states in the U.S.
Competing Legal and Ethical Duties
Concerns about jeopardizing the patient or client relationship, breaching confidentiality, and violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA) stand in tension with reporting laws. As noted in the Tarasoff opinion discussed above, the duty to maintain client and patient confidentiality is not absolute and may be outweighed by the competing obligation to protect patients and the public from harm. This arguably includes a duty to warn the public about patients who may pose a danger behind the wheel.
Mandatory reporting laws typically provide immunity from civil liability to professionals who report patients in good faith. This can include protection from claims made by a patient as well as protection from claims by third parties who are injured by a patient. While these laws may attenuate the fear of being sued, they may also unintentionally discourage patients or clients from sharing critical medical or mental health information with their treater.
HIPAA is not an impediment to a report made in good faith. The HIPAA “Privacy Rule” permits health care providers to disclose protected health information without individual authorization as required by law. It also allows for the disclosure of health information to public health authorities who are authorized by law to receive such information in order to prevent disease, injury, or disability.
In the absence of a law requiring physicians to report patients who are unsafe drivers or, in the face of a vaguely worded law with unclear standards, there is admittedly a greater degree of tension between confidentiality requirements and a duty to report.
Reporting Child Abuse and Neglect
The Federal Child Abuse Prevention and Treatment Act (CAPTA) requires each State to establish a framework requiring certain individuals to report known or suspected child abuse or neglect. Approximately 47 states designate certain professions who are required by law to report. Physicians, social workers, counselors, therapists, and other mental health professionals are among the most common mandatory reporters identified in these laws.
The circumstances that govern the actual reporting of abuse vary from state to state. Typically, a report must be made when the professional suspects or has reason to believe that a child has been abused or neglected. The professional will be required to provide the facts and circumstances that led them to suspect abuse or neglect but do not have to prove their belief.
As with unsafe driver reporting laws, mandatory child abuse reporting laws necessarily create a tension between the duty of a social worker, physician, or mental health professional to protect patient and client confidences and the duty to disclose communications to the extent necessary to comply with the law. Child abuse reporting laws provide far better guidance with respect to when the obligation to report outweighs the duty to protect confidentiality. Moreover, reporting abuse may be a more intuitively simple decision since suspected child abuse is likely to be perceived as a more serious, immediate concern when compared to the possibility, however remote, that a patient or client may cause an accident behind the wheel.
Generally, the information provided to a psychiatrist or other mental health professional during a session with a client is confidential. The right to maintain these client confidences is called a privilege. There are, however, exceptions to this general right.
The reporting laws in most states address this tension directly by limiting the ability of the professional to protect confidential communications when child abuse or neglect is suspected. For example, Alabama’s mandatory reporting law only protects privileged communications with clergy and attorneys. Those professionals are not required to report suspected child abuse when doing so would violate penitent or client confidences. All other professionals are still required to report, regardless of whether the information forming the basis of the report was learned in confidence. Similarly, Colorado’s law specifically provides the psychiatrist-client privilege is not grounds for failing to report.
Many states also protect reporters from any civil or criminal liability, or termination of employment that might otherwise result from the report, so long as the report was made in good faith. Conversely, the failure to report, or knowingly making a false report, is a crime in many states.
Some states allow for anonymous reporting, meaning that a professional who reports suspected abuse or neglect does not have to provide his or her name or any identifying information, however, others do require the name and contact information of the person making the report. Mandatory reporting laws do protect the confidentiality of abuse and neglect records, however, release of the identity of the reporter may be allowed in certain circumstances. For example, in Connecticut, the name of the reporter may be disclosed if it is determined that s/he knowingly made a false report.
Answers to Frequently Asked Questions
Q: Am I legally obligated to report a patient who I believe to be an unsafe driver?
A: It depends. Most states have laws that encourage physicians to report unsafe drivers, or drivers with certain specific medical conditions, such as dementia or epilepsy, but stop short of requiring a report. States which do require the reporting of unsafe and/or impaired drivers generally apply only to physicians and not mental health professionals. Mental health professionals and physicians should familiarize themselves with the reporting laws in their respective states and make every effort to comply.
Q: Where can I report a patient who I believe is unsafe behind the wheel?
A: States with mandatory and permissive reporting laws generally provide specific guidelines and forms that can be obtained through the Department of Motor Vehicles.
Q: Can I be sued if I report a patient who I believe is unsafe behind the wheel?
A: Health care professionals generally enjoy immunity from liability for complying with mandatory reporting statutes in good faith. Again, professionals should familiarize themselves with the reporting laws in their respective states and make every effort to comply.
Q: Can I be sued if I report known or suspected child abuse?
A: Many states protect health care professionals from any civil or criminal liability, as well as from termination of employment, for reporting known or suspected child abuse so long as the report was made in good faith.
Q: Am I breaching confidentiality if I report a patient to the DMV?
A: The duty to maintain confidentiality is not absolute. It is ethically appropriate to breach confidentiality if the patient poses a serious risk to the welfare of the public or to themselves. While there is no clear guidance on the issue in the context of reporting unsafe drivers, in the absence of a mandatory reporting law, it may still be ethically appropriate to report a patient whose operation of a motor vehicle poses a danger to himself and the general public.
Q: Can I get in trouble for failing to report a patient or client who I believe is an unsafe driver?
A: Possibly. In a broader context, courts have held physicians and mental health professionals liable for failing to warn third parties about a threat posed by a patient. Courts have found doctors and psychiatrists civilly liable for failing to warn patients about medication side effects that impair driving ability, failing to warn patients about the impact of certain medical and psychiatric conditions on driving ability, and failing to properly diagnose and treat a condition with dangerous driving implications.
Q: Am I breaching confidentiality if I report known or suspected child abuse disclosed by a patient?
A: Most state laws limit the ability of the professional to protect confidential communications when child abuse or neglect is suspected. In fact, failing to report known or suspected abuse can carry legal penalties in many states. Doctors and mental health professionals should become familiar with child abuse reporting laws in their states and comply with their mandates.
Q: Can I make an anonymous report?
A: Some states provide for anonymous reporting.