When Your Therapist Is Ill or Has Died

By Jacob M. Appel, M.D., J.D., and the GAP Committee on Psychiatry and the Law

Dr. Jones was walking to her office one morning to see her first patient of the day when she fell and hit her head on the sidewalk. She awoke three weeks later in the neurological intensive care unit with her husband at her side, but she suffered significant memory and executive function lapses that would require months of cognitive rehabilitation—with no guarantee that she would ever recover sufficiently to be able to treat patients again. Once she was able to communicate, she asked her husband if anyone had notified her patients of her injury and was distressed to learn that nobody had done so.

Dr. Jones asked her husband if he could phone her patients to let them know that she would be out indefinitely, but then realized she could not recall the password to her electronic medical record. She was not even sure whether allowing her husband access to her files was legal in light of patient confidentiality. It also struck her that some of her patients likely required refills of their medications, but she had not arranged for a backup psychiatrist and did not know to whom she might refer them for timely care. After 35 years as a conscientious clinician, Dr. Jones was deeply distressed that her own injury might leave her longtime patients in the lurch—and wished she had taken steps to prepare for such a situation in advance.

Confronting the Inevitable

All good things must come to an end—even therapy. The unexpected conclusion of the clinician-patient relationship can raise both ethical and legal challenges. Under ideal circumstances, termination is planned in advance and occurs by mutual consent. Unfortunately, the therapist's death or a debilitating illness, especially when unanticipated, may make an orderly closure of a therapeutic relationship impossible.

For example, as the average age of practicing psychiatrists rises—more than 60 percent are now over 55 years old—so does the likelihood of death before retirement. Needless to say, the death of a psychiatrist or any other mental health professional can prove a highly traumatic event for surviving patients. Even when the treatment relationship is not disrupted by death, the fear of losing one’s doctor—either to death or illness—may distress some patients. Yet the consequences of a clinician’s death can be somewhat although not entirely mitigated with advance preparation.

Professional Wills

Professional wills are a form of planning intended to address some of the legal and logistical concerns raised by a therapist’s demise. These are legal documents, written and executed by mental health professionals, that offer specific guidance on how to unwind their practices in the event of untimely death or debility.

This issue does not apply only to psychiatrists. The American Psychological Association’s Code of Conduct generally requires “psychologists 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." While the American Psychiatric Association does not impose such a requirement directly, ensuring that patients do not suffer care ruptures as a result of physician death is certainly good practice and reflects the best ideals of the profession. The same can be said of other mental health professions as well.

Creating a Professional Will

Laws governing professional wills differ considerably from state to state, as do requirements for preserving medical records, so clinicians may wish to familiarize themselves with the rules in their own jurisdiction and/or to consult an attorney in preparation of such a document. Some states, such as New York, offer detailed guidance on issues to be considered when a mental health practice ceases.

Psychologists Kenneth Pope and Melba Vasquez offer a cogent survey of the broader considerations that a mental health professional may wish to consider in drafting such a document. Templates are also available online to download. Succession plans will obviously vary based on the circumstances of specific clinicians. However, several issues are common to most professional wills including:

• Appointing an agent to contact patients to inform them of the clinician’s death or debility.
• Affording that agent information (e.g., passwords, location of records, etc.) and tools (e.g., keys) that will allow the agent to access relevant patient information when necessary.
• Arranging to have records preserved following the laws of the jurisdiction.

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Choosing an Agent

Identifying an appropriate agent or “professional executor” in advance is crucial to this process. In some cases, a spouse or close family member of the clinician may be a suitable choice. In others, a professional will may assign such duties to a colleague. Clinicians may wish to secure waivers from their patients in advance that permit their designated agents' access to records in instances of death or debility, notwithstanding HIPAA and state confidentiality rules to the contrary.

Choosing a Replacement

In some circumstances, especially if death is anticipated, one may wish to identify a potential future clinician for each patient and ensure a mechanism for both a transfer of records. Absent such specifications, clinicians owe their patients—at a minimum—referral information to other mental health professionals or clinics that are reasonably accessible and can offer treatment at a reasonable cost. In the case of psychiatrists who prescribe, no patient’s prescriptions should lapse because her physician shuffles off this mortal coil.

Proactive Transparency

Ideally, addressing clinician mortality should be incorporated into routine practice, much like initial discussions of billing practices, to avoid shifting too much attention from the patient’s needs to the clinician’s health. During long-term treatment with aging clinicians, fear that treatment could lapse may prove a serious source of anxiety. Clinicians can prevent some of this distress by proactively discussing the contents of their professional wills with their patients or even providing patients with copies of the documents.

Executing a professional will is an important step. However, in the absence of proactive transparency by the clinician, it may do nothing to alleviate patient fears, often unarticulated, about the mortality of the people treating them. Some patients, of course, may have the courage and wherewithal to inquire directly how they will obtain care and or fill their prescriptions if their doctor dies. A smaller number of patients may make such inquiries provocatively or to test boundaries—and a clinician might choose to embrace a blank screen approach by not revealing such information, especially if the clinician believes that doing so risks harming the patient or jeopardizing the care relationship. In many cases, however, the patient will wonder about contingency plans, but will not dare to ask.

The belief among certain schools of practice in the importance of the psychotherapist being a “blank screen” has historically led to resistance to professional wills, especially among psychoanalysts. Concern over revealing too much of oneself may be ill-founded as engagement with patients on the subject of clinician mortality can be brief and yet still prove effective. By making the discussion proactive and routine, it remains possible for the clinician to avoid disclosing any personal details regarding their own health. In fact, such proactive transparency may remove an unnecessary distraction from the therapeutic relations.

The Dead Elephant in the Room

Physicians are as likely to fear death as anyone else. Regrettably, reluctance to confront their own mortality may adversely affect patient care. In psychiatry, for instance, the doctor’s fear of death has been associated with negative attitudes toward certain patients. Too often, clinicians’ fears of confronting their own mortality prevents them from taking the necessary steps to protect the interests of their patients after their own deaths. Even many clinicians who execute professional wills fail to discuss them with their patients.

Clinician mortality can become the dead elephant in the room whose presence is never acknowledged. That is why planning for the worst is not enough; proactively informing patients what will happen in the event of a mental health professional’s loss is also essential and should be standard practice. All patients should have the benefit of knowing that if their healthcare professional can no longer treat them, they will be informed quickly and will be provided with alternative care options.

A Patient’s Right to Know

If clinicians fail to address these issues proactively, patients should feel empowered to ask, “Doctor, is there a backup plan for my care if something happens to you?” The patient can ask questions like:

• If you experienced an emergency, would it be helpful if I signed a waiver in advance so that one of your colleagues might access my chart to contact me?
• How would I fill my prescriptions if something were to happen to you?
• Do you have a colleague whom I might contact for interim care if you were unable to care for me due to a sudden illness or injury?

Patients should feel empowered to ask these questions at the outset of the care relationship or at any time during treatment. It is never too soon to inquire; unfortunately, sometimes it can be too late.