(This piece first appeared in the fall 2019 edition of New Jersey Psychologist.)
What happens when a patient dies by suicide?
Hopefully you never experience such a loss. However, data show that a therapist’s odds of losing a patient to suicide at some point in his or her career are at least one in four, perhaps higher. And if a therapist works in a group practice or hospital setting with other therapists, the likelihood increases that, at some point, they will know a colleague who loses a patient.
What would you do?
Losing a patient to suicide is perhaps among a therapist’s greatest fears. For most clinicians, it is the outcome we dedicate our careers toward avoiding, the “termination” universally dreaded. The basic risk management considerations are learned early in clinical training: Alert and communicate with your supervisor, if you have one. Notify your insurer. Secure the patient file. Do not, under any circumstances, alter the records. Each of these recommendations seems to underscore the perceived need to batten down the hatches, keep quiet, and hope for the best.
The New Jersey statutes regarding confidentiality following a patient’s death are equally clear. When a patient dies, regardless of the cause, the therapist is bound by the same limits of confidentiality as for a living patient. Confidentiality survives the patient’s death. [1]
b) In the case of a patient’s death:
1) Confidentiality survives the client’s death and a licensee shall
preserve the confidentiality of information obtained from the client in the course of the licensee’s teaching, practice, or investigation;
2) The disclosure of information of a deceased client’s records is
governed by the same provisions for living patients set forth in
N.J.A.C. 13:42-8.3, 8.4, and 8.5; and
3) A licensee shall retain a deceased client’s record for at least seven years from the date of last entry, unless otherwise provided by law.
Therapist-patient confidentiality is among the cornerstones of ethical practice. Confidentiality engenders trust and reassures the patient it is safe to talk about deeply personal matters without fear of exposure. However, in the aftermath of a patient suicide, does “confidentiality” cast an overly legalistic shadow that potentially cultivates distrust between the therapist and the deceased patient’s survivors?
Not surprisingly, following a suicide, when grieving family members know or learn of the deceased patient’s mental health treatment history, they may reach out to the psychologist (and other treatment team members) as they struggle for some explanation for the death of their loved one. Often, family members are in shock, highly distraught, and possibly angry.
However, unless the now-deceased patient previously authorized the psychologist, in writing, to communicate or share information with the caller, the clinician is legally prohibited from sharing patient information or even divulging the existence of a professional relationship with the deceased. Nor may the therapist reach out to the family, post-suicide, to express condolences or offer support. There are two exceptions available to survivors of the deceased: 1) A copy of the clinical record must be provided in response to a written court order signed by a judge; or 2) A copy of the clinical record must be provided in response to a written request from the documented executor of the deceased patient’s estate, who is recognized as the deceased patient’s living “stand-in.” *
Records maintained as confidential pursuant to N.J.A.C. 13:42-8.1(c) shall be released:
2) Pursuant to an order of a court of competent jurisdiction;
3) Except as limited by N.J.A.C. 13:42-8.4, upon a waiver of the
patient or an authorized representative to release the client
record to any person or entity, including to the Violent Crimes
Compensation Board[2]
The immediate aftermath of a suicide is emotionally charged and chaotic. Under the circumstances, a psychologist’s professional obligation of confidentiality may be interpreted by grieving family as stonewalling. Presumed “secrets” maintained by the treating therapist may take on disproportionate importance for the survivors, and patient records, once obtained, may offer disappointingly little insight or comfort to the grieving family. Is confidentiality in the wake of a patient suicide, followed to the letter, potentially harmful?
At the same time, the therapist may feel unduly burdened by his or her own feelings around the patient’s death. Therapists are people, too, and feelings about a patient’s suicide can be profound. It is not unusual, post-suicide, for a therapist to experience guilt, self-doubt, or shame, or to question his or her own clinical competence even when good care was provided. There may be financial concerns, fear of legal repercussions, worry about loss of professional reputation, and a reluctance to seek support from colleagues.
Who benefits from confidentiality, post-suicide?
At best, confidentiality may briefly postpose communication between the therapist and suicide survivors while the requisite release is obtained. This hiccup may give the therapist a bit more time to prepare for the encounter. More likely, however, the delay heightens anxiety for both the family and therapist and may further erode already dwindling trust.
While grief of any kind is painful, grief after suicide can be particularly complex. During “ordinary” grief, though there may be regrets, the primary tasks of grieving involve coming to terms with the absence of the person, and developing a new “relationship” with the memory of the person. In grief after suicide, the cause of death frequently eclipses memories of the life of the deceased, such that normal grieving is obstructed. Depending upon a survivor’s proximity to the actual suicide scene, the act of the suicide may constitute additional, bona fide trauma. Perceptions that a therapist is not being forthright may pose yet another barrier to processing of grief.
Perhaps there is an argument to be made for revisiting and possibly reconsidering the current parameters of confidentiality following patient suicide. Potential benefits of greater openness between therapist and survivors include minimizing further trauma, reducing or deterring potential animosity, and promoting healthy grieving. Whereas it is not the therapist’s responsibility to treat family members (which would be frankly unethical), a therapist trained in grief triage could offer support and referrals to bereaved family, such that instead of being a lightning rod, the therapist could be a resource. Being contacted by family post-suicide may be highly stressful, particularly when the therapist is feeling flummoxed about how to respond. However, training around post-suicide protocol could help prepare the therapist for survivor reaction, offer tips around self-care, and underscore the value of the therapist’s simply being present for the family. Also, hearing survivors’ perspectives about the deceased could help the therapist reach new understanding of the circumstances in which the patient chose to take his or her life.
And finally, greater openness between therapist and survivors, post-suicide, is not tantamount to “spilling the beans.” Therapists are highly trained to exercise discretion and use good clinical judgment in all their professional endeavors. If confidentiality between a therapist and living patient is intended to promote trust, perhaps a more open, more compassionate, less legalistic posture with survivors in the aftermath of a patient suicide could better serve us all.
[1] NJ Administrative Code, Title 13, Law and Public Safety, Chapter 42, Board of Psychological Examiners (Last Revision Date 8/2018)
* Records also must be released 1) If requested or subpoenaed by the Board or the Office of the Attorney General in the course of any Board investigation; or 4) In order to contribute appropriate client information to the client record maintained by a hospital, nursing home, or similar licensed institution which is providing or has been asked to provide treatment to the client.
[2] NJ Administrative Code, Title 13, Law and Public Safety, Chapter 42, Board of Psychological Examiners (Last Revision Date 8/2018)