A man’s wife dies by suicide over the weekend. That Monday, he calls her therapist. The husband, in a joint session with his wife, has met the therapist before.
“Hi Frank, I thought you would want to know my wife killed herself,” the man says through his sobs.
What can – and should – the therapist say?
“I Can’t Confirm or Deny…”
In a recent discussion, I was shocked when some therapists said to respond, “I can’t confirm or deny that your family member was my client.”
No doubt the people offering this feedback have good intentions. They are being mindful of the laws governing confidentiality of mental health treatment. And when a client is alive, if someone calls and tries to talk to a psychotherapist about the person, the therapist cannot, in fact, confirm or deny whether the person is their client without written permission to do so.
But come on. The man knew his wife was in therapy. He’d met the therapist. If I were the surviving family member, I’d feel invalidated, uncared for, and more than a little angry if the therapist hid behind the legalese of “I can’t confirm or deny…”
I’d ask, “What do you mean you can’t confirm or deny? I sat in a session with both of you!”
By the way, I’m not a lawyer. My opinions here represent a synthesis of various scholarly materials that I’ve read about client/patient confidentiality after suicide.
What Do Other Therapists Advise?
“There may be times when following the letter of the law [about confidentiality] may actually antagonize or cause more harm to a family member than disclosing certain impressions and information.” Those are the words of psychologists Vanessa McGann, Nina Gutin, and John R. Jordan, from their book chapter titled, “Guidelines for Postvention Care with Survivor Families after the Suicide of a Client.”
Dr. McGann and her colleagues recommend balancing the need for confidentiality with the need for compassion:
“We believe that the guiding ethical principle in all interactions with surviving family members after a suicide should be a wise and flexible combination of compassion, support, and adherence to the standard of ‘first do no harm’ rather than a rigid adherence to a legalistic view of the situation.”
I couldn’t agree more.
When a person loses someone they love to suicide, they are not only grieving. They’re also traumatized; in fact, the suicide of a loved one is a qualifying event for a PTSD diagnosis. As therapists, we need to not add to that trauma.
A Major Exception to Confidentiality after a Client’s Suicide
You can’t reveal confidential details of a person’s treatment even after they die, but a family member may be entitled to the person’s treatment records down the road.
According to HIPAA, the privilege of confidentiality passes on to the deceased person’s “personal representative,” such as the executor of the person’s estate or “other person who has authority under applicable State or other law to act on behalf of the decedent or the decedent’s estate.”
In many cases, the person with legal authority to act on behalf the person is the next of kin, such as a spouse, parent, son or daughter. And the person’s next of kin may well decide to give themselves permission to view the therapy records. Before handing over such records, though, always consult with an attorney to make sure you are required to do so.
Lawsuits After a Client’s Suicide
Compassion calls for a humane response to family after a suicide, but there’s also a more pragmatic concern: lawsuits.
A client’s suicide is one of the most common (and some say the most common) reasons for lawsuits against a therapist. Even if you did nothing wrong as the therapist and feel confident you would be exonerated in legal proceedings, the process is still traumatic and always best to avoid.
There is some evidence, based on qualitative interviews with suicide loss survivors, that family members are more likely to sue if they feel that the therapist treated them coldly or dispassionately after the client’s death. It’s recommended, then, that you proceed with warmth and compassion, which is what we should do as therapists, anyway, right?
“Do No Harm”
In sum, there are both humane and legal risk-management reasons to respond to family with care and compassion after a client suicide.
The obligation to keep clients’ disclosures confidential persists after death in most cases, but we also have a humane and ethical imperative to treat the surviving family with compassion.
*
Revised Feb. 1, 2022
Copyright 2017 Stacey Freedenthal. Written for Speaking of Suicide. All Rights Reserved.
Eric Harris, who was (may still be) the lawyer/consultant for the American Psychological Association, has urged “Compassion Over Caution” when dealing with the family of the deceased. And Skip Simpson, an attorney who deals with suicide malpractice cases, agrees.
I know that if I had lost a family member to suicide and had talked to their therapist and they said that they can’t confirm or deny that they were their client that the next phone call that I would likely make would be to a lawyer. Anything else really does not make sense to me, as they are in my mind covering up something much as what people do when they are doing something “secret, or eyes only” I am aware of such projects and documentation. Also people that work under such things know about not saying anything. However not talking to a family member that already knows them and knows that they have been seeing them, is in my mind saying that are basically admitting guilt by their response.