History

2002 APA

Malpractice

Criminal Allegations

Confidentiality

Tarasoff

HIPAA

Summary

 

Law and Ethics for Psychologists

 

Goals and Objectives

1. Identify changes in law and ethics to protect the public.

2. Recognize the most common and  severe mistakes of psychologists to protect the public.

3. Know about new legislation that affects  the psychologist  and patients.

 

By: Kathleen B. Gates, Ph.D.

Disclaimer:

While the author has worked to provide you with the best, most up-to-date information on ethics, there are many articles cited in this course to use if further or more specific information is necessary. Use these resources. If it appears helpful in elucidating the issue you face, contact the author(s) for further information. You may find you have issues which are best answered by the Licensing Board for psychologists. You may need to contact attorneys who specialize in your specific problem. Each patient we see is different and each ethical dilemma is also different.

This course is not intended to offer legal advice or to provide a substitute for legal advice. While laws are frequently cited within the text of this paper, you should be aware that laws can be interpreted differently depending on the specific situation. This is a course which will provide you with an understanding of basic ethical issues which clinical psychologists often face but if you find yourself in a difficult situation in which you do not clearly understand what you should do, it is of vital importance that you take the matter seriously and consult with colleagues, an attorney, or an ethics review committee. It is much wiser to do this prior to trying a method you think is appropriate only to find that you have violated ethical rules and put yourself and your practice in legal danger. 

History of Current Ethical Positions

Many psychologists know little or nothing about the history of psychology in the United States and the development, through much difficulty of the American Psychological Association. This creates a situation in which the current structure of APA, and indeed, psychology in the United States is difficult to understand. It is the intent of this course to elucidate the past for the modern psychologist. The course will then use this understanding of the past to follow the development of psychology to the point at which we find it today. While not all the theoretical positions among the psychologists will be discussed, an adequate number will be so that the current APA code of ethics can be more fully understood. The document published in 2002 is the product of a vast number of people working many years to create ethical standards which will stand as a remarkable work for many years to come. It is important to understand that the 2002 code of ethics came not from people who agreed with each other that psychology was important and would eventually become a cherished part of our society. Instead, the people who worked hardest and perhaps did the finest work in creating today's APA were opposed to the direction it took both away from a solid background in science and toward an overwhelming number of clinicians who suffered their statistics classes so they could one day attend a psychoanalytic institute and devote their lives to understanding and perhaps helping people.

The two World Wars did a great deal in both attracting larger numbers of people to the profession and also establishing it as a powerhouse in developing tests. Through the development of tests which would eventually help to determine whether a soldier should be taught to fly a plane or push a broom, psychology established itself as a leader in thinking about the differences between people as well as the similarities. The end of WWII brought back oceans of soldiers, of whom 44,000 were considered to have mental and emotional problems resulting from war. Many Americans who did not leave the country had no idea of the carnage many of the men had seen. They did not understand why people would round up people who had a different faith but had been their neighbors and friends throughout life and cheer as they left on a train to certain death. The prison camps in which millions of people were tortured and murdered left scars on the world and on our national conscience. America had been very unwilling to enter another war abroad and did so quite late. The soldiers came home to a welcome as heroes but many never were able to forget what they had seen.

The psychologists were no longer needed in such numbers after WWII to help assign the soldiers through testing. There was no known way to treat those who were psychologically injured but psychologists joined psychiatrists in to the hospital rooms where they attempted to talk with and help the emotionally shattered soldiers. The psychologists took their testing materials and developed new ones such as the MMPI which would help them with diagnosis and treatment. While the psychiatrists were still in charge of the hospitals, psychologists were making inroads in a milieu which was valuable both for developing more helpful psychotherapy and for creating a very financially prolific arena. With their tests, and research skills to help them identify which treatments had an effect, the psychologists began to develop new techniques and skills which would enable the men to recover. From these roots, the American psychotherapist began.

Other psychologists who would now be seen as social or industrial/organizational psychologists were studying the effects of many different situations on the responses of people. For example, the Hawthorne studies, which today are seen as the genesis of Industrial Organizational psychology, found that the employees could be influenced to work more productively with what seemed to be minor changes in the workplace.  If workers thought impressive, scholarly people were paying attention to them and monitoring their behavior the productivity increased. The Hawthorne Effect was a landmark finding psychology. Other early studies were not so benign.

Ethics in psychology in the United States developed very slowly. Not so long ago, about 1965, Stanley Milgram, a professor at Yale with impeccable credentials showed that people would follow directions if they were given by an authority figure. His study was simple. He told the subject that he was doing research on learning. When the confederate answered wrong, the subject was to give him electric shock. The amount of shock given seemed to increase to dangerous levels which could cause death.  He found subjects would apply shock to people they could see and hear through a window until they were told to stop. Nearly 66% went to the end of the dial. No one, not one person, asked to go check on the confederate. No ethics board gave him problems for research despite the knowledge that many of his subjects would have to live for the rest of their life knowing that they would torture and kill people merely because they were told to do so. He won the American Association for the Advancement of Science in 1975 for his work on obedience.

Other social scientists were testing all sorts of theories in colleges, nurseries, and workplaces. Some of these did not turn out as well as the Hawthorne studies, leaving the participants with unexpected and unexplained psychological problems. A young Zimbardo from Stanford thought students who were bright and apparently psychologically normal would be able to spend a few weeks together to study such behaviors as dominance, aggression toward those who were defined, however tangentially as being in power. Half would be randomly assigned to be prisoners, and the other half were guards. All male subjects were used. None had previous records of violence. The study had to be halted prematurely because the people involved as prisoners became depressed. Other prisoners withdrew. Guards became increasingly brutal, harassing first with words and later with their hands and sticks the prisoners. Many showed signs of serious psychological problems such as paranoia. There was little or no follow-up on these men. It is unknown if there were long-term effects or if there are merely legends one hears of those subjects.

The emphasis on developing better testing continued. There continued to be a great demand and financial reward for both the researcher and the school which could develop tests which would predict future behavior. Particularly interesting to people in the United States was the determination of intelligence and the ability to know which students would do well at college and which would find the classes too difficult. Although there was a desire among some to use the tests to find and essentially breed a smarter, stronger person, there were also many people who wanted to understand themselves better and makes choices which would lead to a better life.

 A great deal of energy, time, and money was spent in developing these tests, then determining whether or not they were successful. These tests became very popular in the United States during the lengthy period of endemic racism and the shorter, but perhaps more cruel belief in eugenics so those with weak genetic codes would be prevented from reproducing.

Statistics was developing in the social sciences at about the same time so the participants' scores were subjected to a variety of different analyses. The intelligence test invented by Binet was studied at many universities and are still used today. Piaget  and  others borrowed  from  the information provided by Binet. The Wechsler Scales for measuring intelligence in children and adults began to be accepted as the apex of fine testing. The ethical questions of testing people without knowing the strength of the test or whether conditions could be changed are difficult to comprehend at this time. Children and young adults who did not score well on these tests were seen as feebleminded and sent off to sanitariums, were sterilized without their knowledge or permission, or were left at the back of classrooms since they did not have the innate capacity to learn as quickly as others. Having an authority say the test indicated that the child was below normal in intelligence rarely led to people trying to found schools and vocational facilities to help people live normal lives until quite recently. Also, the authority and the test were not questioned during the early years of use..

Gradually, there began to be people within and without the profession of psychology who were willing to question the validity of the tests as well as the finality of their verdict. University committees within the psychology departments who had once believed they were enabling people to work and live in an optimal way were discovering the dark underside of this science as well on the people it was meant to serve.

While some psychology departments were developing tests and doing experiments on their undergraduate students, some of which will never come to light, a different group of psychology academicians began to study human behavior in quite a different way. Following in the footsteps of Titchener, they discovered, like Pavlov, that autonomic reactions could be learned. People have distinct emotional responses which could be predicted based on the stimuli to which they were exposed. An animal who hears a bell just before he is fed will begin to salivate to the sound of the bell in the absence of the food. Many people who hear running water will feel an urgency to urinate since the sound of running water is associated with urination. This phenomenon is known today as classical conditioning. It is a basis of learning emotional reactions in complex cultures as well as responses to stimuli in the most simple organisms.

Watson developed similar ideas in the mid 19th Century. He is seen as the father of modern Behaviorism. He discovered a different sort of learning. Along with his students, he began pioneering work on stimulus and response. He also continued to work on understanding the mechanism by which classical conditioning worked. At one point Watson used an ll month old boy who was known to be afraid of loud noises as a subject. He and a confederate placed the boy on a rug, and made loud noises while introducing various toys such as a rat. The boy predictably became afraid of objects presented to him since it was associated with the loud, feared noise through operant conditioning. No one knows what became of the child. It was noted that his mother was not informed that he was to be an experimental subject and did not give permission to the researchers to use her son. Watson believed he was working toward understanding the nature of human fear and anxiety neurosis. Skinner was the developer of a  technique known as Operant Conditioning, a type of behaviorism which uses reinforcement to increase a behavior and punishment to decrease it..

Psychoanalysis never became popular in the United States as it did in Europe during the early and middle parts of the 20th Century. While in Europe many people who were not physicians were welcome to train to become a psychoanalyst, in America until the 1990's, only psychiatrists were considered to be educated properly to learn psychoanalysis. Throughout the 1970's until the current time, psychologists, social workers, and others who were interested in acquiring training in psychoanalysis either studied abroad or created or joined psychoanalytic institutes which were not part of the American Psychoanalytic Association. These other institutes have become very respected and have developed entire  schools of theory within the International Psychoanalytic Association.

The universities were beset with people with widely divergent philosophies about the nature of people and their relationship to the world. Behavioral treatments of both Classical and Operant Conditioning began to be taught in universities throughout the United States throughout the 1950's, 1960.s and into the mid-1970's as the sole beneficial treatment for mental illness. Large hospitals, holding sometimes thousands of patients worked on a token economy system in which patients were given tokens rather than money to reinforce doing tasks. Psychologists were involved in the hospitals, partially as second-class doctors who were to do work the psychiatrists could not find the time to do. Psychologists also continued to develop testing as their main strength which divided them from the psychiatrists who were legally barred from giving tests since they did not and could not acquire the experience. Psychologists in practice may not have been able to prescribe medication or perform lobotomies, or do electroshock treatments but only they had the right to use testing.

Among themselves, psychologists were having grave problems. APA, which had struggled so valiantly to found itself as a science in 1892, had deep divisions between the scientists and practitioners which led to a failure to keep the scientists and practitioners united in 1938. While there were many social and political reasons which led to this splintering, a main factor was a profound difference in what the various groups studied and what they did professionally. Scientists worked in universities and did research. Professional psychologists were striving to establish themselves as a profession different but no less than physicians. Rather than solely in academia and research, many worked in hospitals and clinics. They also worked with individuals, couples, and groups in their offices. They worked with other practitioners rather than with researchers in the academic world.

Researchers in psychology began to be interested in testing the outcomes of various treatment techniques. While this drew practitioners back to the colleges to study and perform research on the newly developed techniques, there were constant arguments among APA members about what a psychologist was and what direction the profession would take. The scientists were generally at a disadvantage since funding for purely research projects had evaporated while the practitioners were being paid, sometimes handsomely, for their treatment of the mentally ill. As the numbers of professional psychologists increased, the researchers pushed harder for a scientist-practitioner model so psychology would remain a unified membership.

It is important to remember that there were many who did not budge from their position as a scientist who studied the mind. George Albee was such a man. He had been president of the American Psychological Association and wrote many articles and gave lectures on the importance of having the psychologist stay out of the role of therapist or practitioner. Many psychologists continue to see the main work of the field as ground-breaking research. Albee and other psychologists were and are opposed to the use of chemicals to treat mental illness, seeing mental illness instead as a response to the environment. Albee and other psychologists opposed insurance reimbursement for treatment of something he did not see as a disease (Personal communication). Primarily many fought to keep psychology focused on the understanding the human mind and in pursuing prevention rather than cure.

Despite the desire of many scientists and researchers, APA has become overwhelmingly full of people who are primarily practitioners and rarely if ever, do research. While psychologists continues to be trained in the scientist-practitioner model, there is little doubt that most clinical psychologists have become practitoners, lobbying for equal standing with psychiatrists for insurance reimbursement, privileges to prescribe medication, equal pay for services, and equal access to institutions which provide specialized post-doctoral training.

In the ongoing struggle with psychiatrists for patients, psychologists shamelessly used outcome studies done by the researchers primarily which consistently showed that patients did not improve with psychoanalysis as quickly or reliably as they did with behavior therapies. The physicians countered that therapy with medication beat both types of intervention alone.

Basically, it appears that the practitioners needed the researchers both for their expertise in validating treatments but also to help support the profession as a whole with their numbers and their dues. Inclusion rather than the ongoing schisms within psychology seemed the wisest method for preserving and strengthening the psychological community as a whole.

Dilemmas within APA were caused by the solid reuniting of the clinicians with the scientists. Although there were and are many issues; the researchers, industrial/organizational psychologists, and other branches of what had become a very large and messy tree were unhappy about paying dues to an organization which did not serve their needs. The APA throughout much of the 1970's and into the close of the 1980's had spent considerable sums of money suing the American Psychoanalytic Institutes for restraint of trade, eventually forcing them to admit psychologists. APA also lobbied for psychologists in practice to be able to prescribe medications as psychiatrists did. These expenditures along with many others became infuriating to research psychologists who were also paying dues. APA solved this to some extent by raising the dues for psychologists who are engaged in a clinical practice. Still, groups of psychologists have split from APA either temporarily or permanently because their place in the organization was not fulfilling the needs of their specialty.

Although much of the discussion has focused on the research which would be seen as an egregious ethical violation today, the APA has devised a relatively new handbook of ethics which covers nearly all branches of APA. In some ways it is a masterpiece of organization since it gives different branches a sense of independence, yet makes it clear throughout the document that all branches are strongly attached to only one tree.

Current 2002 APA Ethics Code Examined

http://www.apa.org/ethics/code2002.html - Required Reading


The first part of the Ethics handbook clarifies that this is not a legal document. Despite this narrow distinction, it is used to sanction members who disobey the ethics which psychologists have found to be important. It is also used by several state governments in its entirety as the law governing the practice of psychology in that state.

The Preamble and General Principles are written in the spirit of hope and optimism, particularly given the history of in-fighting. Emphasis is placed on the profound sense of unification felt among psychologists of all sorts. There is an emphasis on the scientific underpinnings of psychology and the belief that this research orientation will continue to be taught to all who become psychologists in the future since it is a major force in uniting the profession. There is an undercurrent of hope that the schisms which have existed for over a century and show little sign of abating will heal. There is recognition that psychologists share a commitment to respect the rights and dignities of all people, although in the not-too-distant past, they were rapidly developing tests to prove that racial differences in income could be explained by genetically inherent lower iQs. The General Principles also acknowledges the importance of using solid research which has been developed over the past century within psychology to test treatment techniques for effectiveness,

While there are many reasons for having a book which defines the ethical code of APA, APA has been one of the few organizations which has, of necessity, put a great deal of effort into its development. It is particularly important because human subjects are often used and regardless of the importance the researcher may feel about the technique being tested, psychologists have come to recognize that they must hold themselves to a higher standard if they are to be believable practitioners and compete with others who provide similar services. Additionally, it is preferable that the government rules are less stringent than those of APA. It provides the association with the means to seek out its errant members and provide them with appropriate sanctions so that the association continues to maintain the appearance of operating above the general law of the land.

The APA Ethics handbook is very egalitarian in presenting similar ethical issues which apply to all psychologists. This egalitarian approach may go some way toward healing the schisms which continue to exist. Each group of psychologists as well as most workers in general recognize the need to maintain personal boundaries in the workplace as do scientific, organizational, and clinical psychologists. It is also difficult to argue that a goal should be to avoid harming others and to provide them with both privacy and confidentiality if they are involved in research. Based on the past abuses of people who have volunteered to be in experiments, some of which created damage to the person which could last a lifetime, it is wise for APA to include this proviso and to emphasize it.

The code repeatedly returns to the theme of unity among all branches of psychology including the scientist, the practitioner, the educator, and the industrial/organizational psychologist. In this case, it implies that each psychologist may wear many different hats without being aware of this.


Nevertheless, the ever-increasing numbers of clinicians in APA create problems because others do not see the clinicians as having similar needs, goals, and theoretical background as most others within APA. Because of the well-known difficulty in obtaining admission to an APA approved graduate school while other sorts of psychologists do not face similar hurdles to success, the clinical psychology student as well as the graduate who works as a clinical psychologist may see him/herself as better than others who are also psychologists. This must be overcome before the profession can operate on an egalitarian basis.

Additions have already been made to the 2002 ethics book. These additions include the release of test data, protection for graduate students in therapy, informed consent requirements for experimental researchers, assessment standards, publication credits for students, informed consent in therapy, when to terminate therapy, multiple relationships, and other topics which may be included soon. Theses will be discussed later in the paper.

Although the Preamble and General Principles could be seen as a peace offering to draw the disparate parts of psychology back into a united group, the 82 numbered standards are designed to regulate the practice of psychology on all levels and to enumerate the possible violations of a psychologist. The list is so thorough it has been used to create state laws for governing the practice of psychology.

Violations of these laws may result in a required meeting with an ethics committee. The offending psychologist may be temporarily or permanently suspended from membership in APA. Violations of these rules may also result in state actions against the psychologist which may cause the suspension or loss of the license to practice. It may also result in civil malpractice lawsuits which can be quite expensive and humiliating.

Psychologists are not only governed by APA but also by the State Board of Psychology in which they are licensed. It determines the licensing requirements for psychologists such as number of supervised hours and testing for first time applicants and the number and type of Continuing Education Units for psychologists who are renewing their license.

The Board of Psychology can require you to surrender you license for ethical and/or legal violations. It can impose other sanctions such as taking additional classes if it is determined that the violation of the law was due partly to ignorance.

Most importantly to the majority of psychologists it presents an ever-shifting array of Continuing Education Units which must be taken to renew one's license every two years. These have included education in treating people who have HIV/AIDS which after an 8 hour class amounted to referring the patient to someone or a group which has expertise in that area and not to attempt to manage patients with severe physical problems unless you are willing to invest the time and energy in educating yourself about the disease and treatment of it. When a spate of articles hit the press regarding a perceived increase in crime against elderly people, psychologists were required to take a class about abuse of elderly people. Currently, psychologists are required to take a class in recognizing and providing proper treatment for victims of spousal abuse. Often, no length of time is given for adequate training. There is tremendous variation. While some psychologists specialize in recognizing and treating spousal abuse, others are seeing primarily children with learning disorders. Yet the same Continuing Education Units in special topics continues to be required of psychologists. These courses change regularly every two years and the subjects, while sometimes interesting, are generally not topics from the issues most practicing clinical psychologists find of concern.

 Although many of the rules which we have come to take for granted regarding appropriate treatment of patients seem to be a reasonable means of providing optimal care, the ethical rules followed today have been a remarkable struggle to find common ground between the needs and desires of the therapist, the patient(s), and the government. The American Psychological Association was founded in 1892. It's mission at that time was to advance psychology as a science. Although psychology first began during the Great War since psychologists moved from their obscurity in academia to a larger role as a profession, World War II allowed psychologists a greater role which was far more visible. As a profession in the United States psychologists developed tests to help determine whether a soldier would be successful at a particular job as well as mentally able to do that job.  Psychotherapy also began to be a profession in the United States following the second World War. Psychology as psychoanalysis began in about 1900 in Europe with Freud's seminal book on dreams (1900) and the beginning of the exploration of the unconscious mind. Freud and his followers were actively involved with American psychotherapists of all sorts including psychologists. From the beginning in America there were divisions among people who called themselves psychologists. Clinical psychologists broke with the APA in 1938 forming their own organization, the AAAP to address the issues of the clinician in private practice. Private practice during the years prior to WWII was generally testing and evaluation, treatment of children, and some individual testing of intelligence or personality. It was only after the war with the huge influx of veterans who were hospitalized for mental problems that psychologists began to move into the roles of diagnosis and treatment; a service previously occupied only by psychiatrists. Psychologists were generally untrained in providing psychotherapy yet were pulled into the field due to the necessity of finding people, however tangentially trained in the area, to provide psychotherapy to the men as they returned from war. The APA was reorganized in 1945 to advance psychology as a science, and profession, and as a means of promoting human welfare. The APA continued to pursue a place for psychology as a science which promoted pure research. While APA continued to cling to the belief that psychology should be a science, they discovered there was little funding to be had for the advancement of psychology within an academic setting. To the contrary, those who were acting as clinical psychologists worked in a variety of settings including companies, schools, and universities. They were primarily behaviorists in their approach to treatment following in the footsteps of Watson. Psychologists in the United states were generally not concerned throughout the 1950's and 1960's with the issues of consciousness and thought, instead they focused on behavior. There were only a few psychologists such as Mary Calkins who asserted that the mind was a necessary part of understanding the behavior of a person and should not be so lightly dismissed.

During the 1960's the behavioral underpinnings of psychology came under attack from many quarters as well as having difficulty maintaining a solid theoretical image. Much of the work which formed the foundation for behaviorism was based on non-human species, particularly rats. During this time Skinner was a major theorist defending the behavioral theoretical approach to human behavior. Noam Chomsky, a noted linguist attacked behaviorism directly since it did not and could not explain the way language emerges in people throughout the world. Stimulus and reinforcement, the fundamental aspects of Skinner's behaviorism could not explain how complex language emerged in such specific patterns in children throughout the world, regardless of their culture. Chomsky's work required that the psychologist reconsider the mind as something other than a black box and elevate it to a position of importance in explaining the psychology of people.

Scientific and Applied psychologists were discovering a great deal about the behavior of both individuals and groups of people. For example, the Hawthorne Effect discovered just prior to WWII which indicated that people's behavior will change merely because they are the subjects of research rather than having the change be due to any deliberate manipulation of stimuli by the researchers.

Thus, the profession of psychology and the treatment of patients developed along divergent paths within the United States. The schisms of the earlier years have never disappeared. Professional clinical psychology in the United States lies within a larger organization of the American Psychological Association (Leahey, 2003).

The grouping of professionals who are primarily involved in the diagnosis and treatment of patients, once only the domain of the psychiatrist; with professional research academicians has made for an uneasy peace. APA attempts to decrease the schisms in its ranks by having many different divisions and allowing members to belong to as many divisions as they please. However, the old problems continue to arise for many reasons. For example, full-time clinical psychologists are found to make, on average, more money than full-time academicians or researchers so they are assessed an additional fee when they join and renew their membership in APA, purportedly because APA spends the money to protect the interests of the clinicians among them from the encroaching physicians. APA also works toward helping clinicians achieve parity with psychiatrists through successfully suing for admission of psychologists into the American Psychoanalytic Institutes.  They also  continue to lobby for psychologists to have the right to prescribe medications for their patients, a very lucrative adjunct to psychotherapy. At the same time, the APA struggles to hold on to its members who are Industrial Organizational Psychologists who often find the APA is too invested in clinicians and overcharges other psychologists for membership since the organization appears to the I/O psychologists to do little for them after their training.

Malpractice

It is important to note that regardless of your behavior a patient may decide to sue you for malpractice. This is a frightening prospect, since the grounds for filing a lawsuit against you are so vague that even the finest, most ethical clinicians find themselves involved in litigation which threatens to take away their license, their means of livelihood, and substantial sums of money.

It is also important to realize that despite paying for malpractice insurance, the insurer may determine they would prefer to pay the patient who is bringing the suit rather than spend the money on a lengthy trial. Your insurance carrier may encourage you to agree to settle for a sum without admitting guilt. You may or may not be told that the payment to the client is recorded and permanently kept on file at the National Data Bank where insurance companies and other parties with an interest in the ethics of your practice. Once you are in the National Data Bank, you have to report it each time you renew your membership to any insurance company as a preferred provider. 

The development of an ethical practice, however, may help you to avoid some of the more important pitfalls psychologists make. An excellent resource is the on-line source: http://www.kspope.com/index.php . His wisdom regarding the lifelong pursuit of ethics in one's practice is a very valid approach. Regardless of how many times you read through the law, regardless of how many classes you take in ethics, regardless of how well you follow the rules of the profession, make no mistake, this is a path you will need to pursue consistently throughout your career.

To be sued successfully for malpractice in a civil court, the patient must prove that you have breached the standard of care (Black, 1996). There are four parts which must be seen by the court to have been met for the malpractice suit to proceed.


(1) In some way as a psychologist you have established an agreement between yourself and your patient that you will work together in a therapeutic relationship. The law does not define this in terms of the length of time you have seen the patient, whether or not the patient has paid you. It is entirely the responsibility of the court to determine whether you have established a Duty of Care with the patient.


(2) The work you have done with this patient will be compared to the Standard of Care. This is also defined by the court based on what the court finds is the typical level of proficiency which would be shown by a psychologist under similar circumstances. It may be defined or suggested by an ethics code, a state standard, or case law. There is no clearly defined standard of care since both you and the circumstances in which the act occurred are unique.

(3) The patient must show that there has been some Demonstrable Harm. Although some texts may imply that it is difficult to show demonstrable harm if it is psychological in nature since the patient began treatment presumably due to harmful or painful problems which they hoped to cure, again, it is entirely the duty of the court to determine if you caused harm and, if so, how much harm was caused. The amount of harm caused whether psychological, physical, or financial can only be remedied in a civil suit by money. The court also decides how much money should be given the patient (now plaintiff) for the harm you have caused.

(4)The patient must also prove the psychologist was directly responsible or the Proximate Cause for the harm which was done.  So, the patient must prove that the psychologist had an established relationship with the patient which would prove there was a duty to care, was working below the standard of care, which caused demonstrable harm to the patient which could only have been a direct result of the psychologist's actions.

Despite these levels of proof which sound difficult to attain, many psychologists are sued successfully or have out-of-court settlements against them each year. Following a successful suit or settlement, one should expect an investigator from the Board of Psychology to visit to determine whether or not the actions taken by the psychologist were egregious enough to sanction them by loss or suspension of their license, additional classes to educate the psychologist and attempt to prevent further problems, or other measures. This is a time you would use your malpractice insurance to pay an attorney to defend you against the state licensing board.

Psychologists tend to develop methods which they hope will keep them from finding themselves in court. It is difficult to know which methods work because there is no measure of who has not been sued and why that has not happened. Common sense may be the best guideline.

First, it is important to take care of yourself. Psychologists who are having problems within their own families, use alcohol or drugs inappropriately, are having emotional problems, or simply need a vacation are the most likely people to make minor and major errors in their treatment of patients. This may occur from the distraction caused by the psychologist's own problems or from unconscious motives which are more likely to be enacted when one is not at one's best and inhibitions are lowered.

Second, stay in touch with changes in laws through professional organizations. Maintain your memberships and attend meetings on a regular basis. This will also help you make and maintain friendships with other practicing psychologists. You are likely to find it is helpful to know someone you trust for a consultation if you do find yourself feeling that a patient may cause problems for you. Your friends may also tell you in a much nicer way than the licensing board that you need to take a break from work.

Third, take frequent breaks from work. Your patients will gripe, your spouse will worry about the money, and your colleagues will be jealous. You will have a better chance of staying on top of your cases and come to work with a smile.

Fourth, see a therapist. You went to graduate school and got a Ph.D. You have the right to get some personal psychotherapy and/or/psychoanalysis without feeling like you're so crazy you would rather no one else knew. You might even start feeling better.

Fifth, look at your mail at a time when you can do some reading. Instead of stacking the journal you just got, scan through the articles and read the ones that interest you. You could impress your colleagues at professional meetings by dropping names and you could even try out some of the new techniques you read about and develop some skill with timing.

Sixth, if you have a patient walk in who describes a history of lawsuits, suicide attempts, and has a gambling problem which might cost him/her more than one can afford and you feel the acid turn in your stomach and your headache begin, check on the patient's current level of suicide risk then on your own level of expertise in managing difficult patients. Do not agree to see anyone who walks in the door. Make sure you have some experience with the presenting problem, that you know people in the field who are experts to whom you can turn if serious problems begin to arise, and realize you are free to refer the patient to someone who may be better suited to treat him or her. Do not take on more patients than you can reasonably manage. If you see a patient who is challenging for you for any reason, seek supervision or discuss the patient with colleagues, preferably in a formal manner. We all learn from the work we do with our patients and our toughest patients teach us the most, however, to provide the patient with the best care and to take care of yourself, seek information from those around you, especially experts. Reading journals and books on the topic is also very useful but it can lead to a false sense that you understand the problems you face with that particular patient when you only understand the issue in a broad sense. If you can, create a formal or informal group of colleagues who meet on a regular basis to discuss difficult patients as well as successes. While in some ways we compete for the same patient population, actually all clinicians are much better in some areas than others and it is incumbent on the practitioner to know where they stand in their ability to treat different sorts of difficult patients.

Seventh, and most importantly, do your paperwork. It gives you time to reflect on what you are doing with the patient, whether they need to be referred for medication or other care you cannot provide, and it relieves you of all the guilt you have felt for not keeping up with it. It is also illegal to fail to do it. Some people find they do this best when they complete a formal note in the 10 to 15 minutes between sessions while others find they need to lay out an hour several times weekly or a long afternoon to get it done. Do not underestimate how much time this takes. Completing HIPAA notes can become very quick and efficient if you have a system and do them regularly. On the other hand, trying to recreate the important points of a session from hastily sketched notes during an intense session at the end of the week is nearly impossible. You remember that it was an important session but often lose the crucial meaning which was derived from the work done that day. The main idea to remember is not to fail to do notes until you find yourself served a subpoena by a court or a disability claimant. The notes you create at those times are not beneficial to you or your patient because they lack credibility which comes from a case note which is written soon after the session. While all this seems self-evident, it is important to recognize that keeping notes for anything other than an aid to treatment in most cases was rare until HIPAA was imposed only a few years ago. Many of us had become quite comfortable with brief, non-HIPAA compliant notes and, although we plan to change that habit, have not yet done so. Do it now. You will sleep better.

Last, know your limitations. Refer the patient when you have no experience or training in treating the presenting problem. Refer them if they scare you and you feel you will not be able to find a colleague or supervisor who can help you sort out whether or not you should give this patient a try and if you have someone to help if you find you have trouble. Refer the patient to a physician when you have an odd feeling that the problem does not sound solely psychological. Always refer them if there is any question about whether medication would be helpful. If they refuse, note they refused and why. Refer the patient if they remind you of Mom, Dad, your children, or your spouse. Refer them immediately if you feel they sound just like you. If you smell alcohol and do not regularly treat people with substance abuse, refer them to someone who does. Refer patients who abuse other substances if that is not an area of expertise or one in which you want to develop expertise. Having a drug or alcohol problem may seem minor and secondary to the primary diagnosis but it is amazing how frequently a drug or alcohol problem becomes the main problem very quickly or the main reason why no progress is occurring in therapy. Many of us had the fortune to be trained by masters of the craft of psychotherapy either during or after graduate school. Many of us have become the new masters of the craft. Still, for each and every one of us there are people who walk through our doors as patients and walk out as potential plaintiffs. Even the grand old masters have this happen so it can certainly happen to you.

Malpractice and the Licensing Board

Try to avoid doing anything which will cause you to have problems with the Licensing Board. Get your Continuing Education Units done on time and make sure they count. Keep up on your paperwork. The State Board can require you to produce case notes in a very short time. If the Licensing Board sends you any sort of inquiry, do not take it lightly. Consult with the best attorney you possibly can even if it means traveling. Preferably find someone who teaches ethics and is both a psychologist and an attorney. Make sure they have experience. Do not just dash off a letter which answers the questions asked by the board. If they have written you and asked for a response, it is a serious inquiry about your treatment practices. The Licensing Board takes your responses seriously and what may appear to be a simple misunderstanding between yourself and your patient could result in having to defend yourself and your license before a member of the Licensing Board. Make sure you have Malpractice insurance to cover the fee for an attorney to defend you. Being sanctioned by the Licensing Board is a public process and even if you do not lose your license temporarily and have to take additional classes or other tasks to bring your standard of practice up to that of other psychologists, you may lose your referral base. You will also be likely to find yourself the subject of gossip. The Licensing Board also may determine that you should lose your license to practice psychology permanently. This does not preclude having criminal or civil charges brought against you by your patient(s). All of this is quite public also.

Malpractice and Ethics Committees

Try to avoid actions by ethics committees by following the rules and guidelines for practice. Make it a habit to check in on the APA web site and the Licensing Board Web site on a regular basis so you know when laws are changing. Unfortunately, some therapists were convicted of violating ethics of their profession when they were following what had been a typical pattern but was in the process of changing. When you are uncertain about the rules, ask. Get answers in writing if possible. Know the name of the person with whom you spoke regarding how to most appropriately do tasks or render treatment. Consult with other psychologists and inform them of the difficulties you face. Seek formal supervision. Seek legal consultation. The fee you spend may save your livelihood. Be wary of dual relationships. Be wary of any sort of variation in billing and collecting fees. Be aware of what you put in writing and that the information can be passed on to others even without your knowledge or consent, leaving you in a legal limbo which will certainly require an attorney.

Malpractice due to Criminal Allegations

The Attorney General is involved in these proceedings. They are the most serious offenses, usually involving fraud, collusion in criminal activities, and a variety of criminal offences. Psychologists, while held to a higher legal standard, are people and become involved in illegal schemes just as other people do. In your practice, you do many things totally on your own and you are aware that within your office what occurs is privileged information. This requires that you set the standard higher for yourself because a small bit of cheating quickly spirals into greater corruption. Do not lie, cheat, steal or engage in any behavior which could appear to have involved illicit activities. Do not enter into relationships with your patients or partners which involve felonious behavior. Patients may see a psychologist as someone who is above the law and would not be suspected of criminal behavior. Do not see yourself in this manner and make it clear to patients who wish to have you collude with them in illegal activities that you will not do that and you must report behavior which would cause harm to others. Although psychologists are rarely involved in these activities, conviction results not only in the loss of your license, it also results in criminal prosecution and incarceration. Some of the most frequent offenses involve defrauding Medicare by claiming to have performed services which were either not performed or were not reasonable treatment for the patients involved. These have usually involved large numbers of patients.

Confidentiality

When a patient enters our office and psychotherapy begins, everything which is said or done by that patient, with few exceptions, are confidential. The patient holds the privilege to release the confidential information in legal proceedings. While you may object to the patient using these records, you must have solid grounds for your objection. While these are quite variable, generally patients can request and use their records in any way they please. In some instances, a legal guardian or conservator may hold the privilege if the patient is unable to do so. If the patient dies, their privilege passes to the patient's personal representative who handles legal affairs.

The holder of the privilege also has the right to read all information in his or her file with the exception of your personal notes which belong solely to you. Some psychologists find this requires them to keep separate files so their personal notes do not become part of the patient's legal record. Your patient can read all notes which have their identifying information, diagnosis, treatment plan, prognosis, and other information including billing and information from other sources which you have included in the file such as notes from other physicians and hospitals. Any spare notes in the patient's file also have information which must be passed to the patient. All information in HIPAA notes are the patient's property and must be released. The file is the property of the clinician so copies must be made if the patient requests a copy of their file.

It is your responsibility to maintain the confidentiality of the records. Patient records should be kept in locked containers except when in use. They should be shredded when they are discarded to avoid the potential of having the notes fall into the hands of others. Office staff and others who handle the files should be made aware of the importance of confidentiality. Handle these records as if they were notes made by your own therapist about you. Your patient feels the same need to have the notes be private. Office staff, filing clerks, billing agencies, and others do not have the same burden of confidentiality as does the psychologist. However, it is the responsibility of the psychologist to inform the staff about the importance of confidentiality and to take reasonable action to be certain that staff does not violate the patient's confidentiality. While this is a solid part of HIPAA, it seems to be regularly violated by clerks and other office staff. Often my patients who work for or with counselors in the community or in government report cases which are confidential which they have read with avid interest. Try to keep this sort of clerk off your staff.

Reasons for Divulging Confidential Information

ceusIn 1976, important case law was made in California which is now followed throughout the United States. A romantic young man, Prosinjit Podder, from India, fell madly in love with Tatiana Tarasoff who did not reciprocate his desire. He confessed his intention to cause her bodily harm to his psychologist at a clinic at UC Berkley. He subsequently murdered her. The unfortunate psychologist had followed the law which until then required psychologists to keep all information from patients confidential and to disclose threats only to the intended victim. Luckily, the case came to be known by the name of the murdered young woman and the defendant was the Regents of U of C so he is never named. The California Supreme Court determined that confidentiality laws did not apply when the following rules are met.


1. The threat must be communicated to the psychotherapist directly by the patient.
2. Serious threat of physical harm is imminent.
3. The potential victim must be reasonably identifiable.


In this case, the psychotherapist must:


1. Warn any and all potential victims.
2. Notify authorities including the police, sheriff, or call 911.
3. Take steps of some sort to prevent the threatened danger.

 

tatCase law has continued to add to the confusion about when Tarasoff  applies. One case found it applied when property was threatened, another found it applied when there was no overt threat but a history of violence, in another case Tarasoff was found to apply to communicating threat of suicide to subsequent caretakers.

Under Tarasoff, the psychologist has the duty to both warn and protect potential victims.

A psychologist is also required to breach confidentiality when a patient threatens to harm another person but there is no imminent danger or the victim's identity is unknown. In this case, however, the therapist is to take steps to prevent danger but is not to notify authorities or the potential victim.

Psychologists are also required to breach confidentiality if the patient is in danger of committing suicide and is to take steps to prevent the danger from occurring. In most cases, this requires the therapist to hospitalize the patient.

The courts have required that therapists be able to predict when a patient will act on their impulses and cause bodily harm to themselves or others. Therapists, regardless of their experience are unable to predict when or if someone will be dangerous. Research has consistently borne out that therapists cannot predict violence above the level of chance (Stromberg et al., 1988; Bednar et al., 1991; Otto, 1992; Simon, 2001).

Some traits are more likely than others to predict violence, with the most robust being a history of violence (Simon, 2001), male gender (Simon, 2001), substance abuse (Stromberg et al., 1988).

Peterson et al., 1983 has shown some positive results in identifying people who are likely to commit suicide. The scaling is simple and quick on the SAD PERSONS test and the results have been replicated (Campbell, 2003; Juhnke, 1994,1996).

HIPAA

http://www.hhs.gov/ocr/hipaa/ - Required Reading          

Requires that records on patients be kept by all therapists to protect both the patient and the therapist. All therapists who use electronic transmission of files must be HIPAA compliant. At some point it is expected that all therapists will be required to keep HIPAA notes. The records should include:

Identifying Information: Name, Date of Birth, Social Security Number, Address

Type of service: individual, couple, family, group; theoretical orientation; stage of treatment

Dates of Service

Action Taken

Diagnosis

Fee and Insurance Information

Informed Consent for Treatment

HIPAA allows therapists to keep private process notes which can be used to document thoughts, the therapy relationship, theoretical opinions and other matters which do not directly pertain to the treatment plan for the patient.

Patients, under HIPAA have a right to see their notes within 5 days and have access to a copy of their notes within 15 days. While the file is the property of the therapist, the information in it is the property of the patient. While a therapist can prevent a patient from seeing his or her notes due to danger to the patient, the patient can have a copy of the records sent to another psychologist who can then discuss the notes with the patient.
Length of time to maintain records

While it is suggested that psychologists should keep full records for 3 years and a summary for an additional 12 years, there is no legal standard. Be sure and check with your board before discarding records.

This will change in January, 2007. Psychologists will be required to keep notes on their patients for 7 years after the conclusion of treatment. Thus far, the law does not address clinicians who have followed the previous law, or lack of it, and destroyed notes when treatment was concluded or a year or so afterward. The law will also require that a summary of the notes be kept up to 12 years. Because this is a new law, patients, therapists, or others may find it unreasonable to keep records on people for such a long time. However, it would certainly benefit insurance companies to know that someone who applies for individual health insurance had emotional problems up to 12 years ago and may enter into a costly course of treatment again.

Summary

The laws and ethics governing the practice of psychology has always been a changing and, unfortunately, growing field. While most of the focus today is on the practice of clinical psychology, there are many ethical considerations and laws which govern the practice of psychology in research centers, teaching, human resources, consultation to various businesses, and other fields of psychology which are beyond the scope of this class. Psychology, even clinical psychology is far from having people with similar goals, beliefs, and ethical boundaries. Most of what has been incorporated into the APA Ethics Code has been a series of compromises, beliefs in what psychology is and should become by powerful individuals and groups, and common sense. Ethical guidelines will continue to change and as they do, the laws and the enforcement of specific laws will change too.

This course has emphasized the background of psychology so that the present forces working within psychology can be better understood. It also makes some facts more startling such as Division 39 of APA, Psychoanalysis, is the only fully independently funded group within APA which sponsors and pays for a yearly meeting of members. One might think more traditional groups would have a stronger base with more financial support as well as support by the members.

This course has also provided a means to keep abreast of the changes in laws and ethical considerations. The easy to use links may inspire people to use these means often and avoid problems before they begin.

This course has emphasized how to safeguard your reputation and your practice. It is easy to begin to cheat a little, it is difficult once you have become involved in a series of illicit negotiations with your patients to clean up the mess and start fresh without being sued along the way. Hopefully you have done none of these things. If you have, begin to rectify the situation. The worst choice is to go on hoping you will not get caught.

This course also emphasizes consultation, consultation, consultation. It keeps you safer because it provides evidence that you are consciously seeking to work at a level other psychologists do. Supervision is strongly suggested when you are lost, or about to be, and when you want to learn a new set of skills. Using an attorney is also emphasized. Whether we like it or not, we live in a litigious society and having someone who knows the rules of law which are often unlike the common sense psychologists often apply, is incredibly valuable in saving your possessions and your profession.

The course reading material is copyrighted. For permission to print or copy the text please email the author at CeUnit@verizon.net

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