Cognitive Impairment and Dangerous Driving: A Decision Making Model for the Psychologist to Balance Confidentiality with Safety

doi:10.4236/psych.2011.23040

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Psychology

2011. Vol.2, No.3, 254-260

Cognitive Impairment and Dangerous Driving: A Decision

Making Model for the Psychologist to Balance

Confidentiality with Safety

Christopher Love1, Jennifer Costillo2, Robert Welsh2, Sheryn Scott2,

David Brokaw2

1Patton State Hospital, Patton, USA;

2Azusa Pacific University, Azusa, USA.

Email: [email protected]

Received October 7th, 2010; revised December 22nd, 2010; accepted February 3rd, 2011.

The Transitional Opportunity Partnership (TOP) is a framework for psychological care of cognitively impaired

individuals. In this paper we address the issues associated with cognitively impaired drivers and how the TOP

model can assist psychologists in managing the ethical, legal, and moral dilemmas that often occur with this

challenging population. This paper offers suggestions for how to therapeutically manage the privilege of driving

with cognitively impaired individuals, through client education, increasing awareness of client resistance or in-

capacity to recognize impairment, and proactive intervention.

Keywords: Cognitive Disorder s, Policy, Ethics, Law, Driving

Treating or evaluating cognitively impaired individuals can

present unique challenges to the psychologist. Consider, for

example, the psychologist who needs to decide if the individual

is safe to operate a motor vehicle and is faced with competing

ethical and legal dilemmas. On one side of this dilemma, the

psychologist may be subject to civil litigation on grounds of

failing to protect the public from a dangerous driver if an acci-

dent occurred. On the other hand, mental health professionals,

who breech confidentiality by reporting a potentially impaired

driver to family members, a medical advisory board, or De-

partment of Motor Vehicles (DMV) without client consent may

be held liable for breaking confidentiality (Niveau & Kel-

ley-Pushas, 2001; Smith-Bell & Winslade, 1994). Although

several states mandate reporting cognitively impaired drivers

(Gerber, Henry, Bunn, Baumel & Stacy, 1989; American

Medical Association [AMA], 2008), the literature indicates that

many cognitively impaired drivers continue to drive, even after

being advised of their risk to society (Lipski, 1997; Valcour,

Masaki, & Blanchette, 2002). Furthermore, most states do not

mandate reporting of cognitive impairment to Medical Advi-

sory Boards or Departments of Motor Vehicles. Presently, there

are twenty-two states that have no shielding laws protecting a

medical practitioner who reports a cognitively impaired client

to governmental authorities (AMA, 2008).

With this in mind, this article highlights options for main-

taining quality client care while also balancing public safety

and confidentiality. We propose a systemic and proactive

model for making decisions about, and with, cognitively im-

paired clients. This model builds ethical and legal decision-

making into a cooperative and supporting network of relation-

ships that anticipates restrictive life transitions and difficult

conversations.

A Decision Making-Model: Transitional

Opportunity Partnershi

A core requirement of any decision making model is ad-

vanced preparation that anticipates foreseeable risks and opti-

mizes flexible solutions. The Transitional Opportunity Partner-

ship (TOP) focuses on preparation as a key element of care for

the cognitively impaired client. Following an evaluation that

reveals the presence of mild to moderate cognitive impairment,

two immediate concerns for the client and for society are pre-

sent. First, how the client will get home from the practitioner's

office and second how he or she will be cared for in the days

and months to follow.

The TOP model provides psychologists with responses to

client statements that are guided by ethical principles that safe-

guard the legitimat e needs of both the client a nd society. There

are four primary domains that comprise this model: (1) struc-

turing informed consent and client preparation, (2) psychologist

responses to client assessment results, (3) an ethical framework

for supporting the client, and (4) creating a client assistance

team to ensure continuity of client care. As the psychologist

explains the TOP model with a client, it is necessary to main-

tain a supportive therapeutic relationship in all phases of care.

One primary goal of the TOP model is client satisfaction with

the psychological services regardless of the outcomes of the

evaluation.

TOP Domain One: Informed Consent

When using the TOP model, the practitioner must first de-

termine whether the client is able to adequately understand the

details of the informed consent (American Bar Association

C. LOVE ET AL. 255

[ABA], 2005). For example, if the client demonstrates difficul-

ties with orientation or basic memory recall, it may be neces-

sary to contact family members or close friends of the client

who may assist him or her in understanding what is presented

in the informed consent. Whenever possible, it may be helpful

for the client to bring a trusted family member or friend to the

initial meeting. In cases of advanced age or foreseeable im-

pairment, attention should be given to proper room lighting,

ambient noise or confusion, text size on the forms, and the

speed of delivery of the psychologists comments (ABA, 2005).

A sample informed consent form with these conditions in mind

is included at the end of this article (Appendix A).

Mandated reporting requirements and public safety. In treat-

ing clients with possible cognitive impairment, practitioners are

faced with the difficult challenge of maintaining client confi-

dentiality in light of their commitment to protect society from

potentially dangerous persons who are under their care (APA,

2002). The TOP model advocates that a psychologist’s advance

preparation is the key to successful informed consent. Educat-

ing the client about the multiple roles of a psychologist, in-

cluding a guardian of public safety, will assist the client to un-

derstand the obligations of the practitioner.

It is the responsibility of the psychologist to fully inform his

or her client of the reasonable purpose and expectations of an

assessment before a truly informed consent is provided (APA,

2002). Concerning a potentially impaired driver, a simple reci-

tation of legal statutes about driver capacities may be insuffi-

cient to inform the client of links between driving ability and

cognitive capacity. The conscientious psychologist will dia-

logue with a client regarding his or her previous attitudes about

driving and potential loss of ability to safely operate an auto-

mobile in society. Building upon the client's previous thinking

about safe driving and the safety of others, the psychologist

prepares the client for the possibility that lifestyle changes

could include the revocation of driving privileges.

Elements of informed consent and coordinating care. In line

with the primary theme of preparation in the TOP model, a

detailed informed consent will address the possibility that the

client is experiencing notable cognitive changes, which may

represent a higher risk of danger to the public while operating

an automobile (Carr, Duchek, & Morris, 2000). The following

elements of the TOP model informed consent intend to protect

the client from danger due to cognitive decline and protect the

psychologist from legal risk due to a potential breech of confi-

dentiality: (1) family or supportive caregiver information, (2)

client’s present means of getting home safely, (3) relevant stat-

utes or regulations related to impaired driving, (4) responsibili-

ties of the practitioner to protect the confidentiality of the client

except as permitted by law, and (5) acknowledgment of intent

to release potential client information, as necessary, to family

members, other medical professionals, and governmental agen-

cies to facilitate ongoing care and safety of the client. All of

this should take place prior to conducting a formal cognitive

assessment.

Giving Feedback. One feature of cognitive impairment is that

the client may not accept the results of the assessment (Knop-

man, Boeve, & Petersen, 2003, p. 1291; Messinger-Rapport &

Rader, 2000). Upon completion of the clinical interview and

formal assessment, the psychologist should possess enough

data to formulate a diagnostic impression. From this point, if

cognitive impairment is indicated, an individual’s ability to

drive safely may be sufficiently compromised and consequently

make him or her a danger to society. Psychologists may be

obligated by state law to protect clients from danger to them-

selves or others in the event of foreseeable danger, as suggested

by Currie v. United States, 1986 (Stenger, 1996). The prospect

of gaining client permission to report the client to a govern-

mental authority for retesting or otherwise encumbering the

client’s present freedoms is likely to engender client disdain or

outright refusal (Gammon & Hulston, 1995; Jennings, 2001).

If the client rejects the results of the assessment, the psy-

chologist will already have exercised due diligence within the

TOP model to inform the client of his or her duty to society as a

licensed driver. As part of the TOP informed consent process,

the psychologist will obtain written acknowledgment from the

client that he or she has received the results of the assessment,

even if the client desires to keep his or her impairment a secret

from family or friends (Appendix B). Drawing upon the previ-

ous discussion during the TOP informed consent process of the

client’s attitudes about dangerous driving, the psychologist

seeks to link the client’s present impairment with potential risks

to the client and others while in his or her present condition. At

the same time, regardless of the assessment results, the empha-

sis of building a trusting and collaborative therapeutic relation-

ship with the client remains a priority.

TOP Domain Two: Response to Assessment

Having already determined the client’s present transportation

to the office through the informed consent procedures, the dis-

covery of cognitive impairment may be a surprise to the client;

however, the TOP model will have prepared the psychologist

with an immediate contingency plan (Appendix C). Although

most clients will likely accept the suggestions of the psycholo-

gist, the potential exists for certain clients to refuse to involve

others in his or her care. For the client, it is important to con-

tinue to offer to arrange alternative transportation to get him or

her home safely. In the event that the client refuses to join with

the practitioner in collaborative care, the client is to be given a

signed and dated summary statement (Appendix D) of his or

her present cognitive functioning, which includes the legal and

ethical risks of driving an automobile while experiencing cog-

nitive loss (Appendix E). Once the client has left the office, the

practitioner documents the discussion of driving safety with the

client and the client’s refusal to accept alternative transportation.

At this point, the practitioner also prepares the requisite forms

for notifying the appropriate authorities, such as the Depart-

ment of Motor Vehicles or Medical Advisory Board, of the

potential danger of the client.

TOP Domain Three: Ethical Framework

As implied above, a foundational framework of ethical

commitment to the client and the duty owed to protect society

should be threaded throughout the mental health professional’s

response to the assessment results. Whether or not the client

contests the results of the assessment battery will determine

which ethical issues are present, if any. The client who accepts

the results and recommendations of the practitioner will most

likely actively participate in the recommendations suggested to

C. LOVE ET AL.

256

him or her, thus reducing the possibility of an ethical dilemma.

However, the ethical situation becomes more complicated is

reluctant to accept the findings. Depending on the state, the

reporting of cognitive impairment may be a voluntary issue or

mandated for physicians and surgeons to report impairments

that negatively effect driving ability (AMA, 2008). In Califor-

nia, for example, mental health professionals are potential

sources of evaluative data for licensing qualifications relative to

the cognitive functioning of a particular client-driver (Califor-

nia Vehicle Code [CVC] § 12806c, 2004). As recommended by

the American Psychiatric Association’s Presidential Task Force

on the Assessment of Age-Consistent Memory Decline and De-

mentia (1998), determining cognitive impairment involves a

systemic, multidisciplinary evaluation. Mental health care pro-

fessionals hold a position of influence with clients and are ob-

ligated to protect their health and safety (California Business

and Professions Code [BPC] § 2900, 2004). Nevertheless,

whether or not the client resides in a mandated reporting state,

the mental health professional should consult with the client’s

primary or referring physician concerning the client’s level of

impairment, as will already have been arranged with the client

during the TOP informed consent process. In a mandated re-

porting state such as California, where confidentiality issues are

considered subordinate to public safety (California Evidence

Code [EC] § 1024, 2005), the mental health professional may

risk legal penalties for breech of confidentiality. However, is-

sues of public safety and cognitively impaired drivers are pres-

ently being adjudicated in the “Santa Monica Farmer’s Market

Crash” (Spano & Groves, 2006), which concerns legal penalties

and applicable culpability for severe cognitive impairment

while driving.

TOP Domain Four: Client Assistance Team

Support of family members and the inclusion of community

resource services are essential in properly facilitating the im-

pending life transitions for the cognitively impaired (Hunt,

2003). These social resources provide the core support of a

structured team-based approach to successfully processing a

difficult transitional period as the client attempts to balance his

or her need for autonomy with the realities of decreased cogni-

tive ability. Unfortunately, many cognitively impaired clients

tend to isolate themselves from social interaction (Holmén,

Ericsson, & Winblad, 2000), and some do not have close family

members. Thus, it is all the more important for the practitioner

to assist the client by establishing a formal Client Assistance

Team, as included in the TOP model.

The Client Assistance Team assumes the following: (1) the

client agrees to have family members and other helpers assist

him or her with his or her impairment, (2) the client desires

help with his or her impairment, and (3) the client has identified

the team members he or she desires. Once a Client Assistance

Team is identified, the practitioner and client schedule an initial

meeting when all members of the team can be present. At the

initial meeting, a presentation of the client's current cognitive

status is given to members for the purpose of their being better

able to assist the client in restructuring his or her life under a

positive and forward-looking manner in regard to alternative

possibilities.

Once the Client Assistance Team is established and the cli-

ent’s condition is better understood by the members, the practi-

tioner educates the team members as to the various roles

(Johnson, 1999; Menne, Kinney, & Morhardt, 2002) that must

be fulfilled in helping the client to transition from previous

levels of autonomy into a more support oriented lifestyle. Such

roles may include: (1) team leader, (2) listener/encourager, (3)

physical caregiver, (4) story teller, (5) financial monitor, (6)

community activities facilitator, (7) insurance coordinator, (8)

health care advocate, and (9) health care professionals. While

establishing these roles, it is important to avoid any suggestion

to the client that he or she is less valued or less important to the

well being of the extended family. Certain daily functions may

be more difficult with the onset of cognitive impairment; how-

ever, these difficulties do not relieve the family for the basic

human responsibilities of respect and affirmation toward a cog-

nitively impaired relative.

The role of the Lead Team Member (LTM) should be desig-

nated by the client during the initial Client Assistance Team

meeting. The LTM is a non-professional person who may or

may not be a member of the client’s immediate family. If the

client and the full team, agree on the selection of the LTM, then

the practitioner, the client, and the LTM will be designated as

the Team Leadership Council (TLC). The role of the TLC is to

communicate the client’s status and transitional progress to the

rest of the Client Assistance Team, as well as to disseminate

TLC information to other team members for action and to

process team feedback to the TLC. By establishing a good TLC,

and including other helpful members on the Client Assistance

Team, the team will be able to assist the client without

over-burdening him or her with too many details.

Conclusion

The cognitively impaired driver represents a potential risk to

society while behind the wheel. A multisystemic, multi-level

approach to care for the cognitively impaired provides the best

hope of identifying and fulfilling the life goals of the client.

Fulfillment of these life goals enhances the meaning of life for

the client and instills client satisfaction in his or her ongoing

sense of autonomy and perceived freedoms. Utilizing the TOP

model is one way to address the complex and varying needs

and goals of cognitively impaired clients who desire to drive an

automobile. Within this model, gaining a client's trust and as-

sisting him or her in building a supportive structure to facilitate

his or her goals is difficult work. However, incorporating a

team-based approach diversifies the creative input, which can

influence a client’s attitude toward his or her situation and of-

fers the enhanced wisdom of multiple perspectives on the cli-

ent’s changing reality. The practitioner is but one member

within a team effort to help clients adjust their life priorities to

protect themselves as well as others in society.

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Appendix A

Informed consent for cognitive impairment and risk for driving

PATIENT INFORMED CONSENT FOR MENTAL HEALTH SERVICES

Professional Mental Health Services, Inc. (PMHS) is professional corporation governed by the laws and health regulations of this

State. PMHS conforms its practices and policies to the Ethics Code of the American Psychological Association. As a process of you

granting informed consent for psychological services, PMHS makes you aware of the following policies, rights, and requirements

available to you as a patient of PMHS:

1. PMHS States Its Commitment to practice mental health procedures and assessments at the highest standards of professional

care. We will attempt to coordinate additional care and support of the patient as deemed necessary by PMHS. Additional care for the

benefit of the patient may occur and may or may not be subject to patient approval.

2. Fees for PMHS Services are due at the time of service, unless specific arrangements have been authorized by PMHS. A sched-

ule of fees is available from the receptionist. Cancellations must be 24-hours before the scheduled time.

3. Limits of Confidentiality: In general, all information gathered from psychological testing or therapy sessions is held in strict

confidence except in circumstances as mandated or allowed by law. Specifically, information gathered from a patient that refers to:

(1) child abuse, (2) elder abuse, or (3) facts regarding a patient or stated intentions by the patient that lead PMHS to believe the pa-

tient is a danger to themselves or a danger to others is subject to mandated or voluntary reporting laws as established in this State.

4. PMHS Maintains a Commitment to patient safety and the safety of all people. The results of psychological testing may reveal

the presence of cognitive impairment, which in and of itself may not represent a danger to the patient or society. If, however, the

patient intends to drive an automobile after testing results reveals mild to moderate levels of cognitive impairment, the patient grants

PMHS the right to contact the following person(s) to coordinate alternative transportation of the patient for the safety of the patient

and of others. It is agreed by the patient that PMHS may discuss with the contact listed below the test results which prompted the

request for alternative transportation for the patient. PMHS cannot guarantee the contact listed will maintain confidentiality in this

matter. Furthermore, should the test results reveal significant cognitive impairment, PMHS will contact the appropriate authorities for

the protection of the client and others’

Transportation Contact: ______________________________________ Telephone: _____________________

I, ___________________________________ (Patient) (print name), have read, understood, and agreed to the policies, rights, and

conditions for psychological services as listed above.

Signed: _________________________________________________ Date: ________________________

Appendix B

Release of assessment results to outside parties or medical professionals

PATIENT RELEASE OF ASSESSMENT RESULTS

The following release of assessment results is granted freely with the intent to advance my psychological care and to coordinate

my care with other professional institutions or concerned persons. This release shall remain either until the date listed below OR no

later than 1 year from the date of signature.

I, _____________________________________, to hereby authorize PMHS to release any appropriate information as deemed by

PMHS, including test results and diagnostic impressions regarding my case to the following person(s) for the purpose of advancing

my mental he alth care. _____________________________________________________

_____________________________________________________

My primary care physician is: _____________________________________________________

_____________________________________________________

This release shall remain valid until: _________________________

Signed: _________________________________________________ Date: ________________________

C. LOVE ET AL. 259

Appendix C

Acknowledgment of receiving assessment results without authorization to release results

PATIENT ACKNOWLEDGEMENT OF ASSESSMENT RESULTS AND THEIR DESIRE FOR

CONFIDENTIALITY RELATING TO MILD TO MODERATE COGNITIVE IMPAIRMENT

Professional Mental Health Services, Inc. (PMHS) is professional corporation governed by the laws and health regulations of this

State. PMHS conforms its practices and policies to the Ethics Code of the American Psychological Association.

I, ________________________________________ (Patient) acknowledge that, with my permission, my PMHS psychologist, Dr.

_________________________________ has conducted a neuropsychological evaluation of my cognitive abilities on this date:

_______________________. I have been informed of the results of this evaluation, which indicates, within my doctor’s best profes-

sional judgment, that I presently suffer from a mild or moderate level of cognitive brain impairment.

At this time I do not wish the results of this evaluation to be released to any person. I therefore hold PMHS, Inc., Dr.

__________________________________, PMHS Inc.’s employees, and all other entities of PMHS, Inc., both now and in perpetuity,

harmless of any consequences of my actions related to my driving an automobile, should I decide to drive an automobile while I

remain in my present condition. I further release PMHS, Inc. and my doctor from previous commitments to my confidential ity should

they be subject to mandatory reporting requirements in this State pertaining to cognitively impaired driving. I have been advised that

my safety and the safety of others may be compromised by my cognitive impairment, should I choose to drive an automobile.

Patient Signature: _________________________________________________ Date: ____________________

PMHS Practitioner:_________________________________________________ Date: ____________________

Appendix D

Summary of Assessment Results

RESULTS OF NEUROPSYCHOLOGICAL ASSESSMENT

SUMMARY STATEMENT OF TESTING RESULTS

I, ________________________________________ as an employee of PMHS, Inc. have conducted a comprehensive neuropsy-

chological assessment of ____________________________________________________ (patient) in my office on today’s date

__________________________. The results of the assessment indicates the presence in the patient of cognitive impairment suffi-

cient to warrant a ____ decrease in, or ____ complete cessation of, driving by the patient. It is unknown at this time if the present

cognitive impairment is of a permanent or temporary nature. It has been recommended to the patient that they immediately contact

their primary doctor, Dr. _________________ at ( ) _____ - _______ to schedule an appointment for further testing.

The patient has been requested to contact ______________________________________ at ( ) ____ - _______, who is

identified by the patient as a _____ family member, _____ close friend, or _____ caregiver. At the time of this appointment, the pa-

tient _____ made contact with, _____ refused to contact, this supportive person to arrange for alternative transportation home from

this office.

As of today’s date, this patient _____ has, _____ has not, agreed to sign this form.

Patient Signature: _________________________________________________ Date: ____________________

PMHS Practitioner:_________________________________________________ Date: ____________________

C. LOVE ET AL.

260

Appendix E

Summary statement of client cognitive abilities pertaining to driving a car

RESULTS OF NEUROPSYCHOLOGICAL ASSESSMENT

SUMMARY STATEMENT OF CLIENT COGNITIVE ABILITIES

Professional Mental Health Services, Inc. (PMHS) is professional corporation governed by the laws and health regulations of this

State. PMHS conforms its practices and policies to the Ethics Code of the American Psychological Association.

I, Dr. ________________________________________ as an employee of PMHS, Inc. have conducted a comprehensive neuro-

psychological assessment of ________________________________________ in my office on this date: ______________________.

Based on my professional training and clinical judgment, I believe the test results of this patient’s cognitive assessment indicates they

presently suffer from a mild to moderate cognitive brain impairment. It is unknown at this date whether this impairment is a tempo-

rary or permanent condition. In the course of normal procedures, I have communicated the results of this assessment to this patient on

this date: ____________.

In light of their present cognitive limitations, I have recommended the following guidelines to this patient.

 To refrain from all driving except in emergency situations.

 To participate in establishing a Client Assistance Team to assist the patient with transitional issues related to their cognitive

impairment.

 To contact and communicate with family members and friends to gain their support in this unique time.

 To contact their primary care physician to conduct further evaluations as to t h e c ause of their impairme n t .

 To undergo periodic reassessment to monitor the course of their impairment.

As of today’s date, this patient _____ has or _____ has not agreed to follow these guidelines.

Patient Signature: _________________________________________________ Date: ____________________

PMHS Practitioner:_________________________________________________ Date: ____________________