Law & Psychiatry: Liability Issues Associated With Referrals to Self-Help Groups

Self-help groups, which some refer to as mutual aid groups, have slowly gained acceptance as a credible part of comprehensive care for adults with mental illnesses. In 1978 President Carter's Commission on Mental Health offered early federal recognition that "groups composed of individuals with mental or emotional problems" were being formed around the country ( 1 ). The Office of the Surgeon General followed by providing substantial legitimacy for the value of self-help groups to the medical and public health communities. Former Surgeon General C. Everett Koop ( 2 ) wrote, "My years as a medical practitioner, as well as my own firsthand experience, has taught me how important self-help groups are in assisting their members in dealing with problems, stress, hardship, and pain."

Koop organized a groundbreaking workshop on self-help and public health in 1987 to enhance the role of self-help in public health efforts. Evidence and theory underlying the value of such groups were offered, and workshop participants generated 16 recommendations for enhancing partnerships between self-help and public health. In 1999 a seminal report on mental health, also from the Office of the Surgeon General, mentioned self-help groups among a number of ancillary services that are needed to go beyond symptom management and rehabilitation services ( 3 ). And self-help groups are again an example of a type of consumer-operated program that is recommended to fully promote recovery in the President's New Freedom Commission report ( 4 ).

Providers and their organizations can play significant roles to expand self-help groups and their use as part of a comprehensive behavioral health system through referring consumers, helping consumers organize groups, and providing material resources ( 5 ). However, a number of negative beliefs about self-help groups exist, including concerns that groups are harmful, antiprofessional (that is, antipsychiatry), addictive, and equivalent to the "blind leading the blind," all of which would lead to decreased support for the consumer ( 6 ). Consistent with these beliefs, there are anecdotal reports that providers are concerned about their potential liability when making a referral to a self-help group. For example, physicians or other providers may be fearful that if they refer a client to a self-help group and if that client stops taking his medication based on something that was said at the group, they could be held liable if that client were, in his nonmedicated state, to engage in self-harm or harm to others. Likewise, providers fear that clients may have harmful interactions with others at meetings of self-help groups and perhaps hold the referring provider liable for these negative experiences. This column reviews potential professional liability issues associated with making referrals to self-help groups, concludes that risk is negligible, and offers recommendations for reducing legal risk.

Referral to self-help groups as a standard of care

One set of issues to consider is the extent to which referrals to self-help groups are considered a current standard of care by proponents in the field. Professional negligence is the result of the failure to exercise the degree of care and skill exercised by reasonably well-qualified professionals in the same field. The law accepts provider decisions as meeting the standard of care if they are what reasonably well-qualified professionals ordinarily or customarily do in their practice. Previous research has demonstrated that 65% of behavioral health professionals report making referrals to self-help groups, although most refer infrequently ( 7 ). Thus it would be perfectly reasonable and would fall within a reasonable standard of care for a provider to suggest a self-help group to a client.

Another accepted principle of malpractice law is the two schools of thought doctrine. For example, as one of Pennsylvania's seminal cases on two schools of thought states, "a jury may not decide which of two respected methods of treatment is the better one" ( 8 ). Thus, if there are conflicting views as to the proper course of treatment, as long as they are all accepted by the medical community, the courts will not judge that any one treatment is better than another. In other words, if providers are of one school of thought, they cannot be judged by the standards of another school of thought. Although this theory is not utilized as often as it was in the past because of more uniformly accepted standards of diagnosis and treatment, it is still an accepted common law doctrine.

Provider liability when making referrals

It is commonly accepted that physicians cannot be held liable for simply referring a patient to another provider. Many courts have applied this doctrine when a patient who has been referred has a poor outcome. Although this doctrine is specific to physicians, it can likely be extrapolated to all mental health professionals who make referrals. However, there are three major exceptions to this protection from liability ( 9 ). A practitioner may be held liable if it is determined that the decision to refer the patient to a particular provider is negligent. This would require that the referral itself "falls short of the reasonable practice standard and is sufficient to form the basis of a malpractice suit, regardless of quality of care" ( 9 ). For example, a provider may incur liability if he or she refers to a self-help group but does not offer complete and adequate medical care (for example, medications and therapy).

Another exception to the general rule protecting providers occurs when the "practitioner to whom a patient is referred renders negligent care that injures the patient and for which the referring physician is considered partially or wholly responsible" ( 9 ). This is an issue of vicarious liability. It arises in situations where the referring provider asserts authority over the treatment provider to whom he or she has made the referral such that the treatment provider would be acting as the referrer's agent. Leading cases in this area primarily involve the operating room setting or situations where physicians are supervising other physicians. The final exception to nonliability for physician referrals may be made if the "referring physician knows that the practitioner to whom she or he refers the patient is incompetent" ( 9 ). Incompetence refers to providing care that is not consistent with current standards of practice.

There is little precedent addressing the issue of referrals to alternative treatment providers, the definition of which includes self-help groups, and there is no specific case law pertaining to physicians' liability for referring patients to these groups. Nonetheless, the long-standing rule and exceptions regarding physician referrals to other physicians and health care providers would likely be applied in this context as well. Some authors have argued that the less invasive the treatment, the less likely it is that malpractice liability will arise ( 9 , 10 ). Certainly self-help groups could be considered a relatively less invasive intervention. Malpractice law may change to more specifically address physician referrals to complementary treatments, including self-help groups, as these treatments continue to proliferate ( 9 ). But at present, the environment for providers' referral of patients to self-help groups appears to be fairly safe from a liability standpoint if providers use the same standards used with referrals to other providers.

Finally, liability for professional negligence can be limited if the provider's actions were not the proximate cause of the patient's injury. A basic definition of proximate cause is the reasonable cause, or the cause that fairly connects the harm to its consequences. Courts have defined it as the "substantial factor in bringing about harm inflicted upon a plaintiff" ( 11 ). Simply referring a client to a self-help group would most likely not be considered the proximate cause of harm unless the damages can be more directly linked to the referral rather than, for example, damages caused by a self-help group member.

Limiting liability when referring to self-help groups

Referrals made to self-help groups should occur within a context in which the referring provider has ensured that the individual is receiving or has a plan to receive complete and appropriate medical care for his or her condition. Care must also be taken to avoid vicarious liability from referrals to a self-help group where the provider actively supervises the group leader or leaders. Moreover, it may be wise to limit the appearance of vicarious responsibility for the group by clearly informing patients that the provider has no formal affiliation with the group and that the group should not be considered a substitute for other forms of treatment. Finally, referrals should not be made to a particular self-help group that is known to be harmful or does not follow routine procedures for these types of groups. This requires providers to become more familiar with self-help group theory and benefits, which requires them to contact local groups to inquire about their structure and practices before making such referrals.

Reading any available literature, contacting group leaders and inquiring about group practices, and even attending a meeting or two would be appropriate steps to take in this regard. Another source of protection is the use of disclaimers. A disclaimer is a statement made to those who are referred to these types of groups advising them of certain facts that may serve to limit liability. For example, a disclaimer would state that the provider has no supervisory authority over the meetings and that the referral is not meant to suggest that the self-help group can serve as a substitute for medical or psychological treatment.

Conclusions

We have found no evidence of successful suits against a practitioner for referring to self-help groups. Moreover, we have found solid legal arguments for why liability associated with referrals would be negligible. On the basis of our review it would appear that not referring to self-help groups out of fear of a successful lawsuit is an overly conservative route to take. Perspectives on recovery have changed dramatically over the past few years. It is increasingly plausible that not referring patients to recovery- and rehabilitation-oriented groups—to self-help groups, supported employment, supported education, and other similar community participation and consumer-run programs—may nowraise liability issues, whereas such referrals may have been viewed as risky decades earlier.

Acknowledgments and disclosures

The contents of this legal summary were developed under a grant to the University of Pennsylvania from the Federal Department of Education, National Institute on Disability and Rehabilitation Research grant H133B031109 (Dr. Salzer, principal investigator). However, the contents do not necessarily represent the policy of the Department of Education and do not imply endorsement by the federal government.

The authors report no competing interests.