HIPAA Laws And Dangerousness Disclosure

by William M. Mandell

In his January 15, 2013 letter to “our Nation’s Health Care Providers” United States Department of Health and Human Services Office of Civil Rights Director,  Leon Rodriquez, highlights that HIPAA does not prohibit the disclosure of health information consistent with applicable ethical standards and state law if a patient presents a serious danger to themselves or others in order to alert those persons whom the provider believes are reasonably able to prevent or lessen the threat.

Massachusetts HIPPA laws also allows for such warnings and reasonable precautions in such instances, and even imposes under Mass. Gen. L. c. 123, §36B a duty on licensed mental health professionals to warn or protect potential victims if a patient (i) has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims and the patient has an apparent intent and ability to carry out the threat or (ii) has a history of physical violence which is known to the practitioner and the practitioner has a reasonable basis to believe that there is a clear and present danger that the patient will attempt to kill or inflict serious bodily injury against a reasonably identifiable victim or victims.

In such instances, licensed mental health professionals are authorized to disclose confidential communications when taking one or more of the following required reasonable precautions as defined in Mass. Gen. L. c. 123:

• Communicate the threat to the reasonably identified victim or victims,

• Notify the appropriate law enforcement agency in the vicinity where the patient or potential victim resides, or,

• Arrange for voluntary hospitalization, or initiate proceedings for involuntary commitment.  

Given the focus of our national dialogue on safety from tragedy, this is a good teaching moment to make sure your clinical, social work and health information staffs understand these parameters.

Please do not hesitate to contact Pierce and Mandell, P.C. if you have any questions, or you may contact Bill Mandell directly at bill@piercemandell.com. 

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