Ms M, a 58-year-old woman with depression, anxiety, and a history of childhood trauma and abandonment, was under the care of a psychiatrist in solo private practice who was managing her pharmacotherapy and psychotherapy. It had taken Ms M many years to seek professional help, and after nearly a year of treatment, her depression and anxiety were improving and she was beginning to address her longstanding traumas.
One day, she arrived at her psychiatrist’s office for her scheduled appointment to find the door locked. She waited outside the building, but no one showed up. When she returned home, she called the psychiatrist multiple times, but her calls went to voicemail and her messages were not returned. In the following days, she became increasingly despondent and felt abandoned, and her depression increased.
A few days later, she noticed some newspapers that a neighbor had put out for recycling and saw the headline that her psychiatrist had died in a hit-and-run accident the day before her appointment. Although she understood that the physician had not intentionally “abandoned” her, Ms M nevertheless felt that trust was too dangerous. Her depression and anxiety increased in severity, and she began having suicidal ideation.
Psychiatrists should make provisions for a potential circumstance in which they would be unable to care for their patients, either due to incapacitation or death; however, because the psychiatrist in this case did not do so, Ms M and the other patients in the practice were exposed to harm. In a group practice or institutional setting, the partners or institution would assume this responsibility, but for psychiatrists in private practice, the responsibility falls upon the individual physician to put a mechanism in place via a professional will.
Thomas Gutheil, MD, professor of psychiatry in the Department of Psychiatry at Beth Israel-Deaconess Medical Center and Harvard Medical School, in Boston, Massachusetts, provided insight into this important and often overlooked topic. Dr Gutheil is also assistant director of Medical Student Training and co-founder of the Program in Psychiatry and the Law at Beth Israel Deaconess Medical Center and Harvard Medical School. He is president of the Law and Psychiatry Resource Center and former president of the International Academy of Law and Mental Health.
What is a professional will?
A professional will is a document that lays out specific instructions about issues such as who should inform patients of a clinician’s incapacitation or death, how the information should be conveyed, and what should happen to patients’ records. As with a personal will, the document should name a special master — analogous to an executor — whom the practitioner has designated to carry out his or her instructions and make decisions in the absence of the departed treating professional.
Is it mandated for psychiatrists to write a professional will?
Most professional mental health societies have some type of ethical statement regarding the necessity for practitioners to create a plan in the event of their incapacitation or death. For example, according to the American Psychological Association’s code of ethics, a practitioner should make “reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist’s illness, death, unavailability, relocation or retirement.”1
Having a professional will is not directly addressed in the American Psychiatric Association’s Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry.2 Nevertheless, the American Psychiatric Association’s ethics committee issued 2 relevant opinions (Table 1).3 In addition, the American Psychiatric Association offers an Unplanned Retirement Toolkit, which contains a sample professional will.4
Table 1. American Psychiatric Association Ethics Opinions
|Question: What are the obligations and responsibilities of the executors of the estate of a deceased psychiatrist with respect to the records of former patients? Specifically, should the executor notify all persons about whom there is a medical record? |
Answer: Executors of a deceased psychiatrist’s estate should ensure that patients are informed about the death and resources to establish continuity of care. (Section 4) (1993; Revised 2017)
Question: What are the obligations and responsibilities of the executors of the estate of a deceased psychiatrist with respect to the records of former patients? May they be used for scientific or research purposes?
Answer: The ethical issue is one of confidentiality. The records remain confidential notwithstanding the death of the psychiatrist. Any disclosure of the records must have the consent of the individual patient. (Section 4) (1993; Revised 2019)
Has there been sufficient attention given to creating a professional will?
In my perception, this is an under-addressed topic, due to several potential reasons. One is lack of education, as most medical schools do not include this topic in their ethics courses. Another reason is the general reluctance on the part of people to write any type of will. Several surveys have found that only a small percentage of Americans have a will. One conducted by Caring.com and YouGov.com found that two-thirds of US respondents did not have a will or other estate planning documents.5 Although 35% more people surveyed this year as compared with last year saw the need for a person to have a will, the overall percentage of respondents who actually have a will did not change.5 People are often uncomfortable thinking or talking about their mortality or making practical provisions, and medical and mental health professionals are no exception.
Do you have a professional will?
I have a document in my “death folder,” which is the location where I have my personal will, advance directive, and other documents related to incapacitation or death. In the event of my death, my family would inform the special master, who would take the actions we agreed upon.
What is a special master?
A special master should ideally be a trusted colleague who is formally designated by you to inform patients of your incapacitation or death.
The reason the special master should be a mental health professional is that the role is not only administrative but clinical. There are certainly administrative tasks that need to be taken care of (Table 2), but many can be done by a person who is not necessarily a clinician, such as an administrator or attorney. The role of the special master goes beyond merely transmitting information to a patient about a clinician’s death. The special master might be considered a “bridge” until the patient has found a new psychiatric and therapeutic structure. Losing a psychiatrist can be traumatic for a patient, and clinical skills may be needed to assist the patient through a difficult time. Thus, the special master also takes over the triage of patients after the death, which might mean meeting with a patient to ascertain his or her needs, helping arrange referrals to other psychiatrists or psychiatric settings, and determining if a patient requires hospitalization. The special master obtains and secures the patient’s records and preferably passes them to the patient’s new clinician (or, in some cases, the patient’s attorney), with the patient’s consent. Giving information to the patient’s attorney is not a common pathway; however, at times, if the patient is deceased or under guardianship, the patient’s attorney may be the path to the patient’s executor or guardian who “owns” the information in the record. If the patient wishes to take the records directly, this is allowed in most states, although a case could be made for the special master reviewing the chart to see if that could have a negative effect on the patient.
To perform the task, the special master will need a list of the clinician’s patients and their contact information, together with access to each patient’s medical record and any relevant information that will assist in facilitating the transition of care.
Table 2. Administrative Tasks Associated with Unplanned Practice Closing
|· Notify staff (if relevant)|
· Notify agencies, institutions, and associations
· Notify hospitals where the psychiatrist has had privileges
· Dispose of medication samples and prescription blanks
· Notify the billing company (if relevant)
· Notify businesses to terminate accounts
· Notify medical malpractice carrier
· Notify and terminate professional memberships/responsibilities
· Sample letters, voicemails, and/or e-mail announcements
Are there any concerns that granting the special master access to patient names and records might be a HIPAA violation?
To address the possibility that providing the special master access to patient records might constitute a HIPAA violation, the ethical guidelines of some societies, such as the American Psychological Association, recommend the inclusion of verbiage regarding the special master in the patient’s initial consent form6:
In case I am suddenly unable to continue to provide professional services or to maintain client records due to incapacitation or death, I have designated a colleague who is a licensed psychologist as my professional executor. If I die or become incapacitated, my professional executor will be given access to all of my client records and may contact you directly to inform you of my death or incapacity; to provide access to your records; to provide psychological services, if needed; and/or to facilitate continued care with another qualified professional, if needed. If you have any questions or concerns about this professional executor arrangement, I will be glad to discuss them with you.
However, I do not believe that it is a HIPAA violation for a special master to be granted access to the patient’s medical record in this unusual circumstance. The special master would be included inside the “circle of confidentiality” within which information may flow freely, such as that between treater and inpatient treater team.7 I do not personally feel that it is necessary or even beneficial for a patient to be required to sign a form at the very first session that alludes to his or her new psychiatrist’s potential demise or incapacitation. It might create agitation and undermine the therapeutic relationship right at the outset.
HIPAA is related to protected health information handled by electronic means.8 Obviously, the special master should conform to HIPAA rules when transmitting the chart; however, “front loading” the idea of the treater’s death when treatment has just begun seems to me distracting and unnecessary. It is noteworthy that psychology ethics codes typically feature far greater warnings and cautions in the initial encounter than medical ones.
Do you have any additional thoughts to share?
The COVID-19 pandemic has heightened the sense of impermanence and mortality for many people, although obviously vulnerability to incapacitation and death is scarcely new. Being a psychiatrist carries a responsibility to act in the best interest of patients that extends beyond one’s personal lifespan. Creating a professional will is the best way to ensure that your patients are protected in the unfortunate event of your untimely demise.
Sample professional wills and planning documents, as well as other valuable information, are available from the following associations:
American Psychiatric Association
American Psychological Association
San Diego Psychological Association
National Association of Social Workers
- American Psychological Association. Ethical principles of psychologists and code of conduct. March 2017. Available at: www.apa.org/ethics/code/index.aspx. Accessed August 30, 2021.
- American Psychiatric Association. Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry, 2013 Edition. Available at: https://www.psychiatry.org/psychiatrists/practice/ethics. Accessed September 10, 2021.
- American Psychiatric Association. Opinions of the Ethics Committee on The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry. 2021 Edition. Available at: https://www.psychiatry.org/File%20Library/Unassigned/Opinions-of-the-Ethics-Committee.pdf. Accessed September 10, 2021.
- American Psychiatric Association. Toolkit for the Unplanned Closing of Your Practice. Carlat Psychiatry Report. November, 2017. Available at: https://www.thecarlatreport.com/the-carlat-psychiatry-report/retirement-toolkits/. Accessed September 5, 2017.
- Caring.com. 2021 Wills and Estate Planning Study. Available at: https://www.caring.com/caregivers/estate-planning/wills-survey/. Accessed September 15, 2021.
- San Diego Psychological Association. Guidelines for Preparing Your Professional Will. Available at: https://sdpsych.org/resources/Documents/Preparing%20Your%20Professional%20Will.pdf. Accessed September 12, 2021.
- Gutheil, TG, Appelbaum, PS. Clinical Handbook of Psychiatry and the Law. Fifth edition. New York, NY: McGraw-Hill, 2019.
- US Department of Health and Human Services. Summary of the HIPAA Privacy Rule. Available at: https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html. Accessed September 17, 2021.