Community Grievance Decision Digest

TREATMENT - SECOND OPINIONS, RIGHT TO

THE LAW:

"Any patient who does not agree with all or any part of his or her treatment plan shall be permitted a second consultation for review of the treatment plan as follows:

(a) An involuntary patient may request a second consultation from another staff member who is not directly providing treatment to the patient, and the treatment facility shall make the designated staff member available at no charge to the patient; and

(b)   Any patient may, at his or her own expense, arrange for a second consultation from a person who is not employed by the treatment facility to review the patient's treatment record.

(c)   Service providers may pay for some or all of the costs of any second consultation allowed under sub. (b).  Service providers may also enter into agreements with other service providers to furnish consultations for each other’s clients.”

HFS 94.09(3), Wis. Admin. Code [Emphasis added.]

"Each inpatient and residential treatment facility that administers medications shall have a peer review committee or other medical oversight mechanism reporting to the facility's governing body to ensure proper utilization of medications."

HFS 94.09(9), Wis. Admin. Code [Emphasis added.]

DECISIONS:

1. A client received services from an agency contracted by the county.  He felt that the provider releasing information, without his consent, to an evaluator who was completing a vocational assessment violated his confidentiality. The evaluator was from a local university who had no official connection to the county’s service delivery system.  However, by mutual agreement all the parties, including the client, he was to do a comprehensive vocational evaluation of the client. At a later meeting with the parties, the client found out that county staff had shared specific information about his mental health history but had not obtained a release from him to do so. Other “consents to disclose confidential information” were on file, but there was no release of information relative to the staff’s involvement in the evaluation process.  Was the verbal sharing of any information with the evaluator permissible?  Any information about the client’s mental health history and treatment would constitute “treatment record” information within the meaning of confidentiality laws. But the staff’s very presence at the meeting was an identification of sorts that the client was receiving services from the county.  Did the presence of the staff at the meeting and the client’s lack of objection at the time to any information shared provide an implied consent on his part? Was any information shared covered by some other exception to the requirement for an informed written consent? It was concluded that this evaluation was akin to a “second consultation” and not provided as a routine “purchase of service” resource for county staff.  Thus, it did not readily fit into one of the exceptions to the confidentiality law wherein there is a pre-existing purchase of services contract between the county and a provider.  Further, the section of HFS 94 that addresses a “second consultation” notes that the person doing the consultation can review the client’s treatment record.  By the staff member’s un-objected-to presence, the client may have provided an implied consent, but that this was a “close call” in terms of the technical confidentiality requirements. Since the vocational evaluation was set up by mutual agreement of all parties, there likely was an expectation of open sharing of treatment information to assist the evaluation process. Nonetheless, it would have been best for the service providers to have a clearly written release of information from the client that would specify who all could be part of the information sharing process. There was insufficient evidence to find a rights violation. When outside evaluations occur, there should be clear documentation of the evaluator’s legal status in terms of that person’s right to access treatment information.  For example, is it being done under a purchase of services agreement, as a second opinion/ consultation, or via a specific release of information that clarifies who can provide treatment information, and what type, to the evaluator. (Level III decision in Case No. 00-SGE-01 on 6/29/01.)

2. In general, the treatment decisions of professionals are afforded “due deference” by peers and by the courts.  However, if a treatment decision “departs from professional judgment”, the patient’s right to treatment may have been violated.  A second opinion is usually necessary to see if a professional exercised his or her judgment in a professional manner. A “departure from professional judgment” may be evinced in any of three ways:  a) where the evidence suggests that the professional exercised no judgment at all; b) where the individual was not qualified to make the judgment; or c) where a decision was made on an impermissible basis (e.g., as “punishment”). (Level IV decision in Case No. 02-SGE-04 on 9/19/03.)

3. There must be sufficient evidence to show it was more probable than not that a doctor departed from professional judgment in his prescribing medication to a patient after a phone call with her.  Such evidence would have to come in the form of a second opinion from a professional of equal or greater standing than the doctor. Where there was no such evidence presented during the Level III review, the finding of a rights violation will be overturned. (Level IV decision in Case No. 02-SGE-04 on 9/19/03, overturning the Level III.)

4. An outpatient client disagreed with her therapist assigning her an Axis II Borderline Personality Disorder diagnosis. A diagnosis is ultimately a professional opinion and given “due deference”.  The client had the right to obtain a second opinion from a different therapist. (Level III Grievance Decision in Case No. 05-SGE-12 on 5/16/06)

5.  A complainant had the opportunity to challenge the diagnosis reached by an independent outpatient clinician in the ongoing legal proceedings where that diagnosis was presented in court.  She could have obtained a second opinion from a different psychologist and presented that as a rebuttal.  The diagnosis was the clinician’s opinion, which cannot be challenged in the grievance process.  (Level IV decision in Case No. 06-SGE-09 on 9/27/06)

Last Updated: November 13, 2006