CEU

Law and Ethics

Course Objectives

1. Describe the problematic issues associated with boundary violations.

2. Describe how the supervisory role can be used to prevent the violation of boundaries.

3. Identify how enactment may lead to sexual misconduct.

4. Identify the ethical and legal principals of confidentiality.

5. Describe confidentiality laws and the impact of those laws on the therapeutic relationship.     

Disclaimer: 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 therapist 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.

Confidential Communication

Confidential communication between patient and psychotherapist means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

Confidentiality is designed to reduce the stigma associated with seeking mental health care, foster trust in the treatment relationship and ensure individuals privacy in their health care decisions. Informed consent and confidentiality are important anchors to the principle of autonomy. If a patient believes that the information they share will be disseminated they will be less likely to seek treatment and be less likely to be completely honest.

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 therapists 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 clinician. However, it is the responsibility of the therapist 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.

Holder of Privilege

Holder of the privilege means: (a) patient when he has no guardian or conservator. (b) A guardian or conservator of the patient when the patient has a guardian or conservator. (c) The personal representative of the patient if the patient is dead. Except as otherwise provided  the patient, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed (a) by the holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

Laws Regarding Confidentiality

Exception to Confidentiality

Detention of Mentally Disordered Persons For Evaluation and Treatment (5150)

If a client is a danger to him or herself or others or gravely disabled as a result of a mental disorder, a therapist may have him or her involuntary hospitalized for 72 hours. In cases in which hospitalization is required, voluntary hospitalization is always preferable to involuntary hospitalization. Under certain conditions, a person can be detained for longer than 72 hours.

How to Initiate a Hold: Persons legally authorized by Welfare and Institutions Code 5150 to involuntarily confine an individual include police officers, members of the attending staff (e.g., a Psychiatric Emergency Team, or PET) of a facility certified by the county to hold a patient or other professional persons designated by a county. A therapist who believes that his or her client should be hospitalized involuntarily should contact the police or a PET.

5150: When any person, as a result of a mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, a member of the attending staff,  of an evaluation facility designated by the county, designated members of a mobile crisis team or other professional person designated by a county, may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled. If the probable cause is based on a statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.

The law provides for confinement for a greater period than 72 hours if certain conditions are met. For instance, a person detained for 72 hours may be held for not more than 14 days of involuntary intensive treatment if the professional staff finds that the person is a danger to him or herself, others or gravely disabled as the result of a mental disorder or chronic alcoholism. Someone who has threatened to take his or her own life may be held an additional 14 days beyond the original 14. Finally, someone whose mental disorder causes continued imminent dangerousness (i.e., someone who has threatened, attempted or inflicted physical harm upon another after custody) may be held for an additional 90 days.

The decision as to how long to hold a dangerous patient is made by designated staff after the person is taken into custody. Unless he or she is a designated staff member, a therapist would NOT participate in this decision.

Exceptions to Confidentiality - continued

Tarasoff

law and ethics ceusProsenjit Poddar was born into the Harijan (untouchable) caste in Bengal, India. He arrived at the University of California at Berkeley and resided in the International House. In the fall of 1968, he met Tanya Tarasoff while she was attending folk dancing classes at the International House. They saw each other weekly throughout the fall, and on New Year's Eve, Tanya kissed Poddar. Poddar interpreted the kiss to be the recognition of the existence of a serious relationship. This view was not shared by Tanya who, when learning of his feelings, told him she was involved with other men and otherwise indicated that she was not interested in entering into an intimate relationship with him. CEU

As a result of this rebuff, Poddar underwent a severe emotional crisis. He became depressed and neglected his appearance, his studies, and his health. He remained by himself, frequently abed, speaking disjointedly, and often weeping. He spoke to a friend of being in love with Tanya and about killing her, in particular, by blowing up her room. He told this friend he could not control himself. His condition persisted with steady deterioration throughout the spring and into the summer of 1969. Poddar did have occasional meetings with Tanya during this period and tape-recorded many of their conversations in an attempt to ascertain why she did not love him.

ethics ceusDuring the summer of 1969, Tanya went to Brazil. After her departure, Poddar began to improve and at the suggestion of a friend, sought psychological assistance. The exact date Poddar entered therapy is not available, but on August 18, 1969, he was a voluntary outpatient at Cowell Memorial Hospital (also called University Hospital in some reports). Although he initially had been seen by a psychiatrist, Dr. Stuart Gold, on August 18, 1969, he was under the care of a staff psychologist, Dr. Lawrence Moore. During the August 18 psychotherapy session, his ninth such session, Poddar confided in Dr. Moore that he was going to kill an unnamed girl, readily identifiable as Tanya, when she returned from Brazil.

On August 20, Dr. Moore personally notified campus police officers Everett D. Atkinson and Johnny C. Teel that Poddar was capable of doing harm to himself or others. On that same day, Dr. Moore wrote a letter to the Chief of Campus Police, William Beal, stating that Poddar suffered from a "paranoid schizophrenic reaction, acute and severe" and was a danger to himself and to others. Dr. Moore further stated that, if the campus police would pick Poddar up and transfer him to Herrick Hospital, Dr. Moore would sign a 72-hour emergency detention order on Poddar. Finally, Dr. Moore informed the campus police that Poddar's behavior could be quite rational at times. Dr. Gold and Dr. James Yandell, Dr. Moore's psychiatric supervisor and Assistant Director of the Department of Psychiatry, concurred in Dr. Moore's diagnosis and the need for Poddar's hospitalization.

The campus police took Poddar into custody. Officers Gary L. Browning, Joseph P. Halleran, and Atkinson talked to Poddar and were satisfied that he was rational and had "changed his attitude altogether." After the officers elicited a promise from Poddar that he would try to stay away from Tanya, the campus police released him.

It would appear that the campus police released Poddar on their own initiative; however, either simultaneously with the release or shortly thereafter, Dr. Harvey Powelson, Director of Psychiatry at Cowell Memorial Hospital, learned of the attempt to institute a 72-hour emergency detention order. Dr. Powelson requested that Chief Beall return Dr. Moore's letter, and ordered Moore to destroy all copies of the letter and his therapist's notes on Poddar. In addition, Dr. Powelson ordered his staff to take no further action to place Poddar in a 72-hour treatment and evaluation facility.

Tanya returned from Brazil in October. Poddar continued to follow her and reportedly heard her tell friends of an affair with a "playboy." The criminal cases indicate that in October, after Tanya had returned, Poddar stopped seeing Dr. Moore. However, the Supreme Court, looking to the same source, stated that Poddar stopped his therapy immediately after his detention by the campus police. In any case, on October 27, 1969, Poddar went to Tanya's home to speak to her. Tanya was not at home and her mother told Poddar to leave. Poddar returned later armed with a pellet gun and a kitchen knife. He found Tanya alone. She refused to speak to him and, when he persisted, she screamed. At this point, Poddar shot her with the pellet gun and Tanya ran wildly from the house. Poddar caught her in the yard and stabbed her repeatedly and fatally. Poddar then returned to the house and called the police. Poddar told the police he had stabbed Tanya and asked that he be handcuffed.

Poddar was examined within 24 hours of the stabbing by Dr. Kermit Gruberg, a Berkeley Police Department psychiatrist. Gruberg confirmed the diagnosis of paranoid schizophrenia. Poddar was charged with the murder of Tanya. He pled not guilty and not guilty by reason of insanity. Some time prior to trial, Poddar was examined by Dr. Wilmer Anderson, a neurologist hired by the defense, who testified that, on the basis of neurologic tests, including an electroencephalogram, there were organic abnormalities in Poddar's brain. At trial, Dr. Philip Grossi, a psychiatrist hired by the defense, Dr. Gruberg, Dr. Anderson, Dr. Moore, and Dr. Gold testified that Poddar was insane and a paranoid schizophrenic.

Dr. John Peschau, a court-appointed psychiatrist, testified that Poddar was not a paranoid schizophrenic and that he could understand the duty the law placed upon him. During Dr. Moore's testimony, the details of Poddar's threats against Tanya and the attempt to secure an emergency commitment were revealed in open court. If Tanya's family members were unaware of these facts previously, then they certainly became aware of them at this time. It is not possible from the case reports to establish a temporal relationship between the testimony of Drs. Moore and Gold and the filing of the civil suit. However, their presentation for the defense at trial could not have established a cordial relationship with the family.

The jury convicted Poddar of murder in the second degree. Poddar appealed the decision on multiple grounds. The court of appeals heard the case in 1972 and focused on trial court instruction errors, including a failure to reinstruct the jury as follows: "Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you can not find him guilty of murder in either the first or second degree." The court reduced his conviction from murder in the second degree to manslaughter and remanded the case to the trial court to pronounce judgment. Two years later the Supreme Court vacated the judgment of the appeals court, holding that the instructions given by the trial court, "failed to serve the needs of the jurors to understand and properly apply the evidence of diminished capacity to the underlying issues." The court concluded that the error was prejudicial and remanded the case for retrial.

Poddar was not retried. Rather than go through another lengthy trial (the first was over three weeks), more than five years after the fact, the state released Poddar on condition he immediately leave for India and not reenter the United States. He returned to India and, according to one commentator, is happily married to an attorney.

Vitaly and Lydia Tarasoff, Tanya's parents, filed wrongful death suits against the university and the psychotherapists. They alleged four causes of action. The first cause of action was directed against the therapists' failure to detain Poddar. The second was directed against the therapists' failure to warn the Tarasoffs that Poddar was a grave danger to Tanya. The third was directed against Dr. Powelson and sought punitive damages for his actions following the therapists' attempt at 72-hour emergency detention. Dr. Powelson's actions were characterized as "malicious and oppressive abandonment of a dangerous patient." The fourth cause of action was titled "Breach of Primary Duty to Patient and the Public," and involved essentially the same allegations as the first cause of action.

The Alameda County Superior Court issued "a judgment of dismissal upon an order sustaining a demurrer without leave to amend." The Tarasoffs appealed. The court of appeals affirmed the superior court judgment, ruling the first and fourth causes of action were statutorily barred. The court could find no special relationship between the defendants and Tanya or her parents and therefore found no duty to warn. The court ruled that Dr. Powelson had no duty to commit Poddar and, even if he did, such action was discretionary and protected under statute. The Tarasoffs appealed once more.

Duty of [Physicians] to Take Precautions against Patient Violence.

1.Scope of cause of action. Except as provided in paragraph 5, no cause of action shall lie against a [physician], nor shall legal liability be imposed, for breaching a duty to prevent harm to person or property caused by a patient unless a) the patient has communicated to the [physician] an explicit threat to kill or seriously injure a clearly identified or reasonably identifiable victim or victims, or to destroy property under circumstances likely to lead to serious personal injury or death, and the patient has the apparent intent and ability to carry out the threat; and b) the [physician] fails to take such reasonable precautions to prevent the threatened harm as would be taken by a reasonably prudent [physician] under the same circumstances. Reasonable precautions include, but are not limited to, those specified in paragraph 2.

2. Legally sufficient precautions. Any duty owed by a [physician] to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the [physician] either a) communicates the threat to any identified victim or victims; or b) notifies a law enforcement agency in the vicinity where the patient or any potential victim resides; or c) arranges for the patient to be hospitalized voluntarily; or d) takes legally appropriate steps to initiate proceedings for involuntary hospitalization.

3.Immunity for disclosure. Whenever a patient has explicitly threatened to cause serious harm to person or property, or a [physician] otherwise concludes that a patient is likely to do so, and the [physician], for the purpose of reducing the risk of harm, discloses any confidential communications made by or relating to the patient, no cause of action shall lie against the [physician] for making such disclosure.

Patient means any person with whom a physician has established a [physician]-patient relationship.Many states, before and after the promulgation of APA's Model Statute, enacted laws limiting a therapist's liability so long as certain specific actions are taken by the therapist when a patient threatens violence. Such statutes have sought to reconcile the competing policy concerns for public safety, while limiting intrusion into the therapeutic relationship. Alan Stone commented on this development that "the duty to warn is not as unmitigated a disaster for the enterprise of psychotherapy as it once seemed to critics like myself." 

Reporting Child Abuse And Neglect

Mandated Reporting Law: When a therapist or an intern or trainee, in his or her professional capacity, acquires knowledge or a reasonable suspicion that a child is being abused (or has been abused), he or she must make a telephone report immediately and a written follow-up within 36 hours to the appropriate authorities.CEU

Categories of Child Abuse: physical abuse, sexual abuse, severe and general neglect, willful cruelty and unjustifiable punishment, corporal punishment and injury and abuse in out-of-home care.

Categories of Sexual Abuse: The two categories of sexual abuse are sexual assault and sexual exploitation. Sexual assault includes rape and rape in concert, oral copulation and sodomy, lewd and lascivious acts upon a child under the age of 14, penetration of a genital or anal opening by a foreign object and child molestation. Unlawful sexual intercourse with a child under the age of 16 when the perpetrator is over the age of 21 is reportable as child abuse. Another crime also reportable is lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more that 10 years older than the victim. Sexual exploitation includes conduct involving matter depicting minors engaged in obscene acts; promoting, aiding or assisting a minor to engage in prostitution, a live performance involving obscene sexual conduct or posing for a pictorial depiction involving obscene conduct for commercial purposes; and depicting a child in or knowingly developing a pictorial depiction in which a child engages in obscene sexual conduct.

A report of child abuse is not required when a therapist learns of the abuse in a setting outside his or her professional capacity. A report is also not mandated when a therapist learns of a case involving an adult who was abused as a minor. In this case, however, clinical and ethical considerations will bear on a therapist's course of action. For example, when a therapist learns of an adult who was abused as a child, that therapist should make an effort to learn whether the perpetrator continues to have access to children. If so, and the circumstances arouse a reasonable suspicion of child abuse, the clinician must file a report. Consensual, non-abusive sex between two 13-year-olds is not reportable, but would become reportable when just one of the partners turns 14.

When, in the course of his or her professional role, a psychotherapist either knows or reasonably suspects that a minor is being abused, they have a legal obligation to report what he or she knows of the situation to the proper authorities (Child Protective Services, police, county probation offices or county welfare office) by telephone as soon as possible, with a written follow-up required within 36 hours. The therapist has no discretion in this matter and may be liable for prosecution if he or she does not report.

The requirement to report child abuse and neglect became public policy in all States by 1965 with the passage of the first child abuse reporting law, which only required physicians to report physical abuse. Since that time, neglect, emotional abuse, and sexual abuse have been recognized as injurious to a child's physical and mental health, and reporting laws were amended to include these forms of child maltreatment. Those professionals required by law to make child abuse reports also expanded over the years to include teachers, nurses, mental health professionals, social workers, school custodians, day care providers, and others who are in regular contact with children.

Mental health professionals are now required by law in all States to report child abuse and neglect. The specific language of the States' reporting laws varies, but they typically cover circumstances when one acquires knowledge of or observes a child under conditions that give rise to a reasonable suspicion of child abuse and/or neglect; or, when one has knowledge of or observes a child whom he or she knows has been the victim of child abuse and neglect. "Reasonable suspicion" definitions may vary, but it is generally considered to occur when it is objectively reasonable for a person to entertain such a suspicion, based on his or her training and experience.

Child abuse must be reported when one who is a legally mandated reporter, has knowledge of or observes a child in his or her professional capacity, or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse.

The Reporting Mandate to Whom You Must Report

The report must be made to a "child protective agency." A child protective agency is a county welfare or probation department or a police or sheriff's department. Exceptions are reports by commercial print and photographic print processors, which are made to the law enforcement agency having jurisdiction. The mandated reporter must report the known or suspected incidence of child abuse to a child protective agency immediately or as soon as practically possible by telephone. You will speak to the social worker or law enforcement officer on duty.

Mandated reporters, however, are not legally required to tell involved individuals that a report is about to be made. The law does not require mandated reporters to tell the parents that a report is being made; however, in the majority of cases, advising the client is therapeutically advisable. First, the therapist is employing clinical leverage by using authority to set a firm and necessary limit. Reporting child abuse responds to the parents' nonverbal plea for help. The therapist can reassure the clients that steps will be taken to help the parents regain control so that the abuse does not lead to serious injury or emotional trauma to the child. Second, if the therapist does not mention the report, there is secrecy and tension, which may result in the clients' feelings of suspicion, isolation, or betrayal. In some cases, reporting may elicit an extreme response from the clients. It is contra-indicated to inform parents about the report if the individual seems psychotic, has poor impulse control coupled with a history of violent behavior, has a problem with alcohol or drugs, or is likely to flee. It can be very beneficial to give clients the opportunity to make the reports themselves in the therapist's presence. A self-report, however, does not negate the therapist's mandate to report.

Health practitioners, including MFTs, psychologists, professional counselors and social workers, are legally mandated reporters. Other legally mandated reporters include child care custodians, teachers, teacher's assistants, employees of child protective agencies and commercial film and photographic print processors. Legally mandated reporters are required to give their names.

Child abuse is defined as “a physical injury which is inflicted by other than accidental means on a child by another person.” Child abuse also means the sexual abuse of a child or any act or omission, willful cruelty or unjustifiable punishment of a child, or unlawful corporal punishment or injury. Child abuse also means the neglect of a child or abuse in out-of-home care. Child abuse does not include any injury caused by reasonable and necessary force used by a peace officer . Abuse must be reported “even if a suspected child abuse victim has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy.”

Please keep in mind that your responsibility is only to report suspected abuse, not investigate it. Your attempts to investigate may have unforeseen negative impacts on the child and family. Leave it for the child welfare professionals.

The following types of abuse must be reported by legally mandated reporters:

Physical Abuse: Physical injury inflicted by other than accidental means.

Sexual Abuse: Sexual abuse includes sexual assault and sexual exploitation.

Sexual assault is defined as:

Rape and rape in concert: This includes any forced sexual activity with anyone under age 18, or helping someone else rape a minor.

Incest: Incest is any sexual activity between parents and children, ancestors and descendants, siblings and between uncles or nieces and aunts or nephews.

Oral copulation and sodomy

Lewd and lascivious acts upon a child under the age of 14: This refers to any sexual touching or intercourse with a male or female child under the age of 14, even if it is consensual. If “lewd and lascivious” behavior occurring between minors, when each is under the age of 14 years, is not reportable, as long as the minors are of roughly the same age and there is no coercion involved. However, lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more than 10 years old than the victim is reportable.CEU

Child Molestation

Sexual Explotation - Conduct depicting a minor engaged in obscene acts, including preparing, selling or distributing the obscene matter and/or employing a minor to perform obscene acts; any person knowingly promoting, aiding or assisting, employing, using, persuading, inducing or coercing a child, or any parent or guardian of a child under his or her control knowingly permitting or encouraging a child to engage in or assisting either to engage in prostitution or a live performance involving obscene sexual conduct or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, picture or other pictorial depiction involving obscene sexual conduct for commercial purposes; any person depicting a child in or who knowingly developing, duplicating, printing or exchanging any film, photograph, videotape, negative or slide in which a child is engaged in an act of obscene sexual conduct.

Severe and General Neglect: Acts or omissions committed by a person responsible for a child that harm or threaten to harm the child's health or welfare.

Severe neglect: “the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive.” Severe neglect also means those situations of neglect where “any person having the care or custody of a child willfully causes or permits the person or health of the child such that his or her person or health is endangered including the intentional failure to provide adequate food, clothing, shelter or medical care.”

General neglect: This is defined as “the negligent failure of a person having the care or custody of a child to provide adequate, food, clothing, shelter, medical care or supervision where no physical injury has occurred.”

Willful Cruelty and Unjustifiable Punishment: This refers to situations in which “any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering.

Corporal Punishment and Injury: This refers to “a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition.”

If a therapist hears about child abuse from a third party, and this raised a reasonable suspicion of abuse, the therapist must make a report if the information was revealed to the therapist within their professional capacity.

Confidentiality: The identity of all reporters is considered confidential and is disclosed only between child protective agencies.

Immunity: Mandated reporters have immunity from criminal and civil liability for reporting as required.

Any other person who reports a known or suspected case of child abuse is also protected from civil and criminal liability, unless it can be proven that the person deliberately made a false report.

Privilege: The Child Abuse Reporting Law takes precedence over laws governing the psychotherapist-patient privilege.

Failure to Report: A failure to report known or suspected child abuse when mandated to do so is considered a misdemeanor and is punishable by a term in jail not to exceed six months or by a fine not to exceed $1,000 or by both.

Elder and Dependent Adult Abuse Reporting

Mandated Reports: A mandated reporter must report a known or suspected instance of elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she (1) has observed or has knowledge of an incident that reasonably appears to be physical abuse, neglect, financial abuse, abandonment, abduction, or isolation; (2) is told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, neglect, financial abuse, abandonment, abduction, or isolation; or (3) reasonably suspects abuse.

Optional Reports: Mandated reporters may report a known or suspected instance of elder or dependent adult abuse when they have knowledge of or reasonably suspect that a form of elder or dependent adult abuse for which a report is not mandated has been inflicted upon an elder or dependent adult or that the elder or dependent adult's emotional well-being is threatened in any other way.

Definition of Elder: An “elder” is a person who is age 65 years or older.

Definition of Dependent Adult: a dependent adult is a person, between the ages of 18 years and 64 years, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.

What Must Be Reported: Under the current law, mandated reporters, including therapists, are now required to report the following:

Instances of known and reasonably suspected physical abuse of an elder or dependent adult. Instances of known and reasonably suspected neglect, financial abuse, abandonment, abduction, and/or isolation of an elder or dependent adult, and any other treatment that results in physical harm, pain, or mental suffering.

As a mandated reporter, a psychotherapist is required to make a report of known or suspected elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she has observed or has knowledge of an incident that reasonably appears to be abuse, is told by an elder or dependent adult that he or she has experienced behavior constituting abuse; and/or reasonably suspects abuse.

Abuse of an elder or dependent adult includes the following categories: Physical abuse, neglect, financial abuse, abandonment, abduction, isolation, and any other form of treatment that results in physical harm, pain, or mental suffering. Mental suffering may consist of fear, confusion, severe depression, agitation, or other serious emotional distress caused by threats, harassment, or other forms of intimidating behavior.

Physical Abuse includes assault, assault with a deadly weapon or with force likely to cause great bodily injury; battery; sexual assault, unreasonable physical restraint; prolonged or continual deprivation of water or food; and the use of physical or chemical restraint for punishment, for a period of time beyond that for which the medication was ordered through instructions from a licensed physician or surgeon caring for the elder or dependent adult, and/or for any purpose not authorized by the elder or dependent adult's physician or surgeon.

Neglect refers to the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a similar position would provide. Neglect also includes self-neglect, the negligent failure of an elder or dependent adult to provide a reasonable degree of care to himself or herself.

Specific examples of neglect include the failure to assist in personal hygiene or in the provision of food, clothing, or shelte,; the failure to provide medical care for physical or mental health needs and the failure to prevent malnutrition or dehydration.

Financial Abuse means concealing, taking, or appropriating an elder or dependent adult's property or money to any wrongful use or with the intent to defraud.

Abandonment, desertion or willful abandonment by a person having the care or custody of the elder or dependent adult person under circumstances in which a reasonable person would continue to provide care and custody.

Isolation, deliberately preventing an elder or dependent adult from receiving his or her mail or phone calls. False imprisonment; and/or the physical restraint of an elder or dependent adult for the purpose of preventing him or her from meeting with his or her visitors.

Reporting Elder Abuse

Reports of known or reasonably suspected elder or dependent adult abuse must be filed by telephone immediately or as soon as practically possible. A written report must then be sent within two working days.

Reporters should generally make reports to their county's adult protective agency or a local law enforcement agency. There are two exceptions to this, however: First, if the abuse occurred in a state mental health hospital or state developmental center, the report should be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services or to the local law enforcement agency. Second, if the abuse occurred in a long-term care facility (other than a state mental hospital or a state developmental center), reports should be made to the local ombudsman or to the local law enforcement agency.

Any person legally required to report elder or dependent adult abuse who knowingly fails to report can be found guilty of a misdemeanor that is punishable by not more than six months in the county jail or a fine not to exceed $1,000 or both imprisonment and a fine. A therapist who fails to make a timely mandated elder or dependent adult abuse report may also face disciplinary action by their governing board and civil action for damages. The law provides that no person required to make a report of elder or dependent adult abuse shall be criminally or civilly liable for such a report, as long as it cannot be proven that the report was made falsely.

Minor Mental Health Consent Laws

Outpatient Counseling and Treatment

The statute does not define “treatment.” However, treatment in this context does notinclude convulsive therapy, psychosurgery or psychotropic drugs. A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis or to residential shelter services, if both of the following requirements are satisfied: The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services. and the  minor would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or is the alleged victim of incest or child abuse.” CEU

Confidentiality Obligations

If the minor consents to care, the provider can only share the minor’s medical information with the signed consent of the minor.

Exceptions to Confidentiality

Discretion to Inform Parents without Minor’s Consent

The health care provider is required to involve a parent or guardian in the minor’s treatment unless the health care provider decides that such involvement is inappropriate. This decision and any attempts to contact parents must be documented in the minor’s record. While this exception allows providers to inform and involve parents in treatment, it does not give providers a right to disclose medical records to parents without the minor’s consent.

Discretion to Inform Other Providers without Minor’s Consent

The health care provider may share medical information for treatment or referral purposes with other qualified professionals  treating the client. However, the provider cannot share psychotherapy notes without written client authorization. Psychotherapy notes are notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records.

Psychotropic Medications

"Psychotropic medication" means those medications prescribed to affect the central nervous system to treat psychiatric disorders or illnesses. Only with parent or guardian consent, except a guardian cannot consent to experimental medications for a minor.

Inpatient Treatment

Only with parent or guardian consent, except a guardian cannot place a minor in a mental health facility against the minor’s will. Involuntary placement can only be obtained through a 5150 or 5350 proceeding. This does not preclude a guardian from placing a ward in a state hospital under a WIC 6000 application.

Psychosurgery/Convulsive Therapy

Only with parent consent. A guardian cannot consent to convulsive therapy.  However, convulsive treatment shall not be performed on a minor under 12 years of age. Persons 12-15 may be administered convulsive treatment only if it is an emergency situation and is deemed a lifesaving treatment and other criteria are met. If the minor is able to give informed consent, the surgery cannot be performed if the minor refuses. Minors 16 and 17 must give voluntary informed consent for convulsive treatment.

Confidentiality Obligations

If the parent/guardian consents to care, the parent/guardian has a right to access the minor’s medical information and the provider can only share the minor’s information with others with the signed consent of the parent/guardian.

Exceptions to Confidentiality

Discretion to Refuse Access to Parents

The parent/guardian of a minor shall not be entitled to inspect or obtain copies of the minor’s patient records where the health care provider determines that access to the patient records requested by the parent/guardian would have a detrimental effect on the provider's professional relationship with the minor patient or the minor's physical safety or psychological well-being. The decision of the health care provider as to whether or not a minor's records are available for inspection under this section shall not attach any liability to the provider, unless the decision is found to be in bad faith.

Discretion to Inform Other Providers

The health care provider may share medical information for treatment or referral purposes with other qualified professionals treating the client.. However, the provider cannot share psychotherapy notes without written parent authorization. Psychotherapy notes are notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records.

Drug Counseling by federally assisted drug treatment program

An individual, program or facility is federally assisted if:  The individual, program, or facility is authorized, certified, licensed or funded in whole or in part by any department of the federal government. Examples include programs that are: tax exempt; receiving tax-deductible donations; receiving any federal operating funds; or registered with Medicare. And the individual or program: Is an individual or program that holdsitself out as providing alcohol or drug abuse diagnosis, treatment, or referral; or Is a staff member at a general medical facility whose primary function is, and who is identified as, a provider of alcohol or drug abuse diagnosis, treatment or referral; or Is a unit at a general medical facility that holds itself out as providing alcohol or drug abuse diagnosis, treatment or referral.

“A minor who is 12 years of age or older may consent to medical care and counseling relating to the diagnosis and treatment of a drug or alcohol related problem.”  (This section does not grant a minor the right to refuse medical care and counseling for a drug or alcohol related problem when the minor’s parent or guardian consents for that treatment.

Confidentiality Obligations

If the minor consents to care, the provider can only share the minor’s medical information with the signed consent of the minor.

Exceptions to Confidentiality

Discretion to Inform Parents without Minor’s Consent

Providers may not disclose information to parents without a minor’s written authorization However, an exception allows a program to share with parents if the program director determines the following three conditions are met: (1) that the minor’s situation poses a substantial threat to the life or physical well-being of the minor or another; (2) that this threat may be reduced by communicating relevant facts to the minor’s parents; and (3) that the minor lacks the capacity because of extreme youth or a mental or physical condition to make a rational decision on whether to disclose to her parents.

Discretion to Inform Other Providers without Minor’s Consent

The health care provider only may share medical information with providers employed by the same program or with an entity having direct administrative control, and only in connection with duties arising out of the provision of diagnosis, treatment or referral. Providers also may release information to other medical professionals to meet a bona fide emergency.

Drug Counseling

By individuals, programs or facilities that are not “federally assisted” This section does not grant a minor the right to refuse medical care and counseling for a drug or alcohol related problem when the minor’s parent or guardian consents for that treatment.  “A minor who is 12 years of age or older may consent to medical care and counseling relating to the diagnosis and treatment of a drug or alcohol related problem.”

Confidentiality Obligations

If the minor consents to care, the provider can only share the minor’s medical information with the signed consent of the minor.

Exception to Confidentiality

Discretion to Inform Parents without Minor’s Consent

The health care provider is required to involve a parent or guardian in the minor’s treatment unless the health care provider decides that such involvement is inappropriate. This decision and any attempts to contact parents must be documented in the minor’s record. While this exception allows providers to inform parents of treatment and involve them in treatment, it does not give providers a right to disclose medical records without the minor’s consent. CEU

Discretion to Inform Other Providers without Minor’s Consent

Records maintained in connection with drug abuse treatment or prevention efforts conducted, regulated, or directly or indirectly assisted by the state Department of Alcohol and Drug programs cannot be shared with providers not employed by the same treatment or prevention program except to meet an emergency. For programs that are not state assisted, the health care provider may share medical information for treatment or referral services with other providers. However, the provider cannot share psychotherapy notes without written client authorization.

Psychotherapy notes mean notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records

General Medical Care for Emancipated Minors

An emancipated minor may consent to medical, dental and psychiatric care.   “A person under the age of 18 years is an emancipated minor if any of the following conditions is satisfied: (a) The person has entered into a valid marriage, whether or not the marriage has been dissolved. (b) The person is on active duty with the armed forces of the United States. (c) The person has received a declaration of emancipation” from a court.

Confidentiality Obligations

The health care provider is not permitted to inform a parent or legal guardian without minor’s consent. The provider can only share the minor’s medical records with the signed consent of the minor.

Exception to Confidentiality

Discretion to Inform Parents without Minor’s Consent

The health care provider has no discretion to inform parents without the minor’s signed consent.

Discretion to Inform Other Providers without Minor’s Consent

The health care provider may share medical information for treatment or referral purposes with other qualified professionals treating the client. However, the provider cannot share psychotherapy notes without written client authorization.  Psychotherapy notes are notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records.

Resource: National Center for Youth Law

Sex With a Client is Illegal: Psychotherapists can be held liable, civilly and criminally, for engaging in sexual relations with their clients. Civil liability can result if a therapist engages in sex with a former client prior to two years after the termination of therapy. Criminal liability can result if a therapist engages in sex with a current client or if he or she terminates a therapeutic relationship with a client for the purposes of beginning a sexual relationship with that client. In addition, under licensing laws, a clinician who has sex with a client can have his or her license revoked.

 Your Legal Responsibilities When a Client Reveals a Sexual Relationship With a Previous Therapist: When a client reveals a previous or ongoing sexual relationship with his or her former or other therapist, the client's subsequent or other therapist has a legal obligation to give the client a brochure that explains the client's rights and responsibilities. Sex with clients is wrong and prohibited by ethical and legal standards. A psychotherapist who engages in sexual activity with a client may have his or her license revoked.

In recent years, two additional laws have been enacted with regard to psychotherapist sex with a client. Although both clearly prohibit sexual contact with a client currently in therapy, they are less consistent with regard to whether sexual contact is permitted with former clients. At this time, therapists are civilly liable when they engage in sexual relations with former clients prior to two years after the termination of therapy. Criminal liability in such cases results only when therapists terminate therapy solely for the purpose of engaging in sexual relations with a client.

In effect as of January 1, 1988, this law creates a separate cause of action for psychotherapist sex with a patient. A client has a cause for civil action against a psychotherapist when sexual contact occurs during the course of therapy, within two years following termination of therapy and/or by means of deception. This law also requires the therapist to give a brochure that explains the client's right to any client that revealed prior sexual contact with their therapist. Failure to distribute this brochure is considered unprofessional conduct.

Potential consequences of conviction include imprisonment in the county jail for up to one year and fines (up to $1,000 for the first conviction and up to $5,000 for the second conviction). Under law, the first violation is treated as a misdemeanor and the second violation is treated as either a felony or a misdemeanor, according to the discretion of the court and district attorney. Further, the consent of the client may never be used as a defense.

Unprofessional Conduct: Some examples of unprofessional conduct include: negligence or incompetence in the performance of marriage and family therapy; misrepresentation involving type of license held, educational credentials, professional qualification or professional affiliations; performing, or holding oneself out as being able to perform services outside the scope of the license; failing to maintain confidentiality, except as otherwise permitted or required by law; and soliciting or paying remuneration for referrals. Unprofessional conduct is punishable by revocation or suspension of a license or an intern's registration; it is also a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $2,500, or both.

Therapist should never go into business with their clients.

The following laws outline the possible penalties for unprofessional conduct and list examples of such conduct:

Denial, Suspension, Revocation

The Board may refuse to issue an intern registration or a license or may suspend or revoke the license or intern registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct. Unprofessional conduct shall include, but not be limited to:

(a) The conviction of a crime substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, or duties of a licensee or under this chapter. A plea or verdict of guilty or a following a plea of nolo contendere made to a charge substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter shall be deemed to be a conviction within the meaning of this section. The board may order any license or registration suspended or revoked, or may decline to issue a license or registration when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or, when an order granting probation is made suspending the imposition of sentence, allowing any such person to withdraw a plea of guilty and enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.

(b) Securing a license or registration by fraud, deceit, or misrepresentation on any application for licensure or registration submitted to the board, whether engaged in by an applicant for a license or registration, or by a licensee in support of any application for licensure or registration.

(c) Administering to himself or herself any controlled substance or using of any of the dangerous drugs, or of any alcoholic beverage to the extent, or in such manner, as to be dangerous or injurious to the person applying for a registration or license or holding a registration or license under this chapter, or to any other person, or to the public, or, to the extent that such use impairs the ability of such person applying for or holding a registration or license to conduct with safety to the public the practice authorized by the registration or license, or the conviction of more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this subdivision, or any combination thereof. The board shall deny an application for a registration or license or revoke the license or registration of any person other than one who is licensed as a physician and surgeon, who uses or offers to use drugs in the course of performing marriage and family therapy services.

(d) Gross negligence or incompetence in the performance of therapy.

(f) Misrepresentation as to the type or status of a license  registration held by the person, or otherwise misrepresenting or permitting misrepresentation of his or her education, professional qualifications, or professional affiliations to any person or entity.

Impersonation of another by any licensee, registrant, or applicant for a license or registration, or, in the case of a licensee, allowing any other person to use his or her license or registration.

(h) Aiding or abetting any unlicensed or unregistered person to engage in conduct for which a license or registration is required under this chapter.

(i) Intentionally or recklessly causing physical or emotional harm to any client.

(j) The commission of any dishonest, corrupt, or fraudulent act substantially related to the qualifications, functions, or duties of a licensee or registrant.

(k) Engaging in sexual relations with a client, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.

(l) Performing, or holding one's self out as being able to perform, or offering to perform or permitting, any trainee or intern under supervision to perform any professional services beyond the scope of the license authorized by this chapter.

(m) Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.

(n) Prior to the commencement of treatment, failing to disclose to the client or prospective client the fee to be charged for the professional services, or the basis upon which that fee will be computed.

(o) Paying, accepting, or soliciting any consideration, compensation, or remuneration, whether monetary or otherwise, for the referral of professional clients. All consideration, compensation, or remuneration shall be in relation to professional counseling services actually provided by the licensee. Nothing in this subdivision shall prevent collaboration among two or more licensees in a case or cases. However, no fee shall be charged for that collaboration, except when disclosure of the fee has been made in compliance with subdivision (n).

(p) Advertising in a manner which is false, misleading, or deceptive.

(q) Reproduction or description in public, or in any publication subject to general public distribution, of any psychological test or other assessment device, the value of which depends in whole or in part on the naiveté of the subject, in ways that might invalidate the test or device.

(r) Any conduct in the supervision of any intern or trainee by any licensee that violates this chapter or any rules or regulations adopted by the board.

Scope of Practice and Scope of Competence

Counselors practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Counselors gain knowledge, personal awareness, sensitivity, and skills pertinent to working with a diverse client population.

Many families and many individual are experiencing difficulty and distress, and are in need of wise, competent, caring, compassionate, and effective counseling in order to enable them to improve and maintain healthy family relationships.

Healthy individuals and healthy families and healthy relationships are inherently beneficial and crucial to a healthy society, and are our most precious and valuable natural resource.

No person may engage in the practice of marriage and family therapy, unless he or she holds a valid license as a marriage and family therapist, or unless he or she is specifically exempted from that requirement, nor may any person advertise himself or herself as performing the services of a marriage, family, child, domestic, or marital consultant, or in any way use these or any similar titles, including the letters "M.F.T." or "M.F.C.C.," or other name, word initial, or symbol in connection with or following his or her name to imply that he or she performs these services without a license.

Persons licensed may engage in such practice or advertise that they practice marriage and family therapy but may not advertise that they hold the marriage and family therapist's license.

The practice of marriage and family therapy means that service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments. This practice includes relationship and premarriage counseling.

The application of marriage and family therapy principles and methods includes, but is not limited to, the use of applied pyschotherapeutic techniques, to enable individuals to mature and grow within marriage and the family, the provision of explanations and interpretations of the psychosexual and psychosocial aspects of relationships, and the use, application, and integration of the coursework and.

Experience, means experience in interpersonal relationships, psychotherapy, marriage and family therapy, and professional enrichment activities that satisfies the requirement for licensure as a marriage and family.

Any licensed marriage and family therapist who conducts a private practice under a fictitious business name shall not use any name that is false, misleading, or deceptive, and shall inform the patient, prior to the commencement of treatment, of the name and license designation of the owner or owners of the practice.

A trainee shall inform each client or patient, prior to performing any professional services, that he or she is unlicensed and under the supervision of a licensed marriage and family therapist, a licensed clinical social worker, a licensed psychologist, or a licensed physician certified in psychiatry by the American Board of Psychiatry and Neurology.

In order to continuously improve the competence of licensed marriage and family therapists and as a model for all psychotherapeutic professions, the Legislature encourages all licensees to regularly engage in continuing education related to the profession or scope of practice.  

As a model for all therapeutic professions, and to acknowledge respect and regard for the consuming public, all marriage and family therapists are encouraged to provide to each client, at an appropriate time and within the context of the psychotherapeutic relationship, an accurate and informative statement of the therapist's experience, education, specialties, professional orientation, and any other information deemed appropriate by the licensee.

Every person who holds a license to practice marriage and family therapy shall be governed by the rules of professional conduct.

Specialty Areas of Practice

Counselors practice in specialty areas new to them only after appropriate education, training, and supervised experience. While developing skills in new specialty areas, counselors take steps to ensure the competence of their work and to protect others from possible harm.

Qualified for Employment

Counselors accept employment only for positions for which they are qualified by education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Counselors hire for professional counseling positions only individuals who are qualified and competent for those positions.

Monitor Effectiveness

Counselors continually monitor their effectiveness as professionals and take steps to improve when necessary. Counselors in private practice take reasonable steps to seek peer supervision as needed to evaluate their efficacy as counselors.

Psychotherapist-Patient Privilege

Holder of Privilege

Holder of the privilege means: (a) The patient when he has no guardian or conservator. (b) A guardian or conservator of the patient when the patient has a guardian or conservator. (c) The personal representative of the patient if the patient is dead. Except as otherwise provided in the information below, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

Patient means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.

Confidential communication between patient and psychotherapist means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

There is no privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by:

   (a) The patient;

   (b) Any party claiming through or under the patient;

   (c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or

   (d) The plaintiff in an action brought for damages for the injury or death of the patient.

There is no privilege if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition.

There is no privilege if the psychotherapist is appointed by the Board of Prison Terms to examine a patient.

There is no privilege if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.

There is no privilege as to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or interstate succession or by inter vivos transaction.

There is no privilege as to a communication relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship.

There is no privilege as to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the patient, purporting to affect an interest in property.

There is no privilege as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a patient, now deceased, purporting to affect an interest in property.

There is no privilege in a proceeding initiated at the request of the defendant in a criminal action to determine his sanity.

There is no privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.

There is no privilege in a proceeding brought by or on behalf of the patient to establish his competence.

There is no privilege as to information that the psychotherapist or the patient is required to report to a public employee or as to information required to be recorded in a public office, if such report or record is open to public inspection.

There is no privilege if all of the following circumstances exist:

   (a) The patient is a child under the age of 16.

   (b) The psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child.

Recordkeeping

Record Keeping Requirements for Licensed Marriage and Family Therapists and Licensed Clinical Social Workers: the failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered is considered unprofessional conduct.

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 clinician. However, it is the responsibility of the therapist 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.

Standards For Client Records

The documentation standards are described below under key topics related to client care. All standards should be addressed in the client record; however, there is no requirement that the record have a specific document or section addressing these topics.

A. Assessments

1. The following areas should be included as appropriate as a part of a comprehensive client record.

• Relevant physical health conditions reported by the client should be prominently identified and updated as appropriate.

• Presenting problems and relevant conditions affecting the client’s physical health and mental health status should be documented, for example: living situation, daily activities, and social support.

• Documentation should describe client strengths in achieving client plan goals.

• Special status situations that present a risk to client or others should be prominently documented and updated as appropriate.

• Documentation should include medications that have been prescribed by mental health plan physicians, dosages of each medication, dates of initial prescriptions and refills, and documentation of informed consent for medications.

• Client self report of allergies and adverse reactions to medications, or lack of known allergies/sensitivities should be clearly documented.

• A mental health history should be documented, including: previous treatment dates, providers, therapeutic interventions and responses, sources of clinical data, relevant family information and relevant results of relevant lab tests and consultation reports.

• For children and adolescents, pre-natal and perinatal events and complete developmental history should be documented.

• Documentation should include past and present use of tobacco, alcohol, and caffeine, as well as illicit, prescribed and over-the counter drugs.

• A relevant mental status examination should be documented.

• A five axis diagnosis from the most current DSM should be documented, consistent with the presenting problems, history, mental status evaluation and /or other assessment data.

B. Client Plans

1. Client Plans should:

• have specific observable and/or specific quantifiable goals

• identify the proposed type(s) of intervention

• have a proposed duration of intervention(s)

• be signed (or electronic equivalent) by :

• the person providing the service(s), or

• a person representing a team or program providing services

• when the client plan is used to establish that services are provided under the direction of an approved category of staff

• a physician

• a licensed/”waivered” psychologist

• a licensed/registered/waivered social worker

• a licensed/registered/waivered Marriage, Family and Child Counselor or

• In addition:

• client plans should be consistent with the diagnoses, and the focus of intervention should be consistent with the client plan goals, and there should be documentation of the client’s participation in and agreement with the plan. Examples of documentation include, but are not limited to, reference to the client’s participation and agreement in the body of the plan, client signature on the plan, or a description of the client’s participation and agreement in progress notes.

• client signature on the plan can be used as the means by which it documents the participation of the client

• when the client is a long term client, and

• the client is receiving more than one type of service

• when the client’s signature is required on the client plan and the client refuses or is unavailable for signature, the client plan should include a written explanation of the refusal or unavailability.

• the clinician should give a copy of the client plan to the client on request.

2. Timeliness/Frequency of Client Plan:

• Should be updated at least annually.

• The clinician should establish standards for timeliness and frequency for the individual elements of the client plan described in item 1.

C. Progress Notes

1. Items that must be contained in the client record related to the client’s progress in treatment include:

• The client record should provide timely documentation of relevant aspects of client care

• Clinicians should use client records to document client encounters, including relevant clinical decisions and interventions

• All entries in the client record should include the signature of the person providing the service (or electronic equivalent); the person’s professional degree and licensure

• All entries should include the date services were provided

• The record should be legible

• The client record should document referrals to community resources and other agencies, when appropriate

• The client record should document follow-up care, or as appropriate, a discharge summary

Patient Access to Records

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 therapists 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.

Dual Relationships

For both counselors and supervisors, any dual relationship is problematic if it increases the potential for exploitation or impairs professional objectivity (Kitchener, 1988). There has been greater divergence of opinion about what constitutes an inappropriate dual relationship between supervisor and counselor than between counselor and client. Ryder and Hepworth (1991), for example, stated that dual relationships between supervisors and supervisees are endemic to many educational and work contexts. Most supervisors will, in fact, have more than one relationship with their supervisees (e.g., graduate assistant, co-author, co-facilitator). The key concepts remain "exploitation" and "objectivity." Supervisors must be diligent about avoiding any situation which puts a supervisee at risk for exploitation or increases the possibility that the supervisor will be less objective. It is crucial, however, that supervisors not be intimidated into hiding dual relationships because of rigid interpretations of ethical standards. The most dangerous of scenarios is the hidden relationship. Usually, a situation can be adjusted to protect all concerned parties if consultation is sought and there is an openness to making adjustments in supervisory relationships to benefit supervisee, supervisor and, most importantly, clients.

Health care professionals are committed to promoting the welfare and well-being of the patient over and above any personal consideration. Indeed, this fiduciary obligation is one of the defining characteristics of a “profession” as such. This concept of a profession gives rise to the notion of boundaries in client-professional relationships, that is, to the notion that there are limits of ethically appropriate professional behavior. A boundary violation occurs when a health care professional’s behavior goes beyond appropriate professional limits. Boundary violations generally arise when a personal interest displaces the professional’s primary commitment to the patient’s welfare in ways that harm the patient or the patient-clinician relationship. Interactions between health care professionals and patients are ethically problematic when they can reasonably be expected to affect the care the individual or other patients receive or the health care professional’s relationships with colleagues—or when they give the appearance of doing so.

Health care professionals should:

  1. Critically examine their own actions by asking themselves the following questions:  

Is this activity a normal, expected part of practice for members of my profession?  Might engaging in this activity compromise my relationship with this patient? With other patients? With my colleagues? With my institution? With the public?  Could this activity cause others to question my professional objectivity?  Would I want my other patients, other professionals, or the public to know that I engage in such activities?

  1. Take appropriate action if the answers to these questions indicate that an activity may violate professional ethical boundaries:  Determine if there are applicable standards.  Consult a trusted and objective peer for a second opinion about the activity.  Seek assistance from a supervisor or ethics committee. Communicate his or her concern to the individual involved.  Transfer the patient to another clinician’s care if the professional relationship has been compromised, or if avoiding the violation will damage the relationship.
  2. Be familiar with:  Relevant professional codes of ethics, standards of practice, guidelines, and position statements;  Applicable policies in their facilities; and  Laws pertaining to relationships between patients and health care professionals.

Boundaries define the limits of appropriate behavior by a professional toward his or her clients. By establishing boundaries, a health care professional creates a safe space for the therapeutic relationship to occur. Concerns about professional boundaries in the relationship between patients and health care providers—and the damage that results when boundaries are transgressed—captured public and professional attention following reports of inappropriate sexual relationships between health care professionals and patients. Relatively little attention has been paid to the “boundary question” outside this context, but many other interactions raise concerns about boundaries as well. Therapist’s need guidance if they are to avoid engaging in interactions with their patients that may prove ethically problematic.

 The notion of boundaries in the health care setting is rooted in the concept of a “profession.” While this concept is understood in several different ways in the medical and sociological literature, there is consensus regarding one of the defining characteristics of professions and professionals: commitment to serve the profession’s clients. That is, professionals are expected to make a fiduciary commitment to place their clients’ interests ahead of their own. In exchange for faithfully applying their unique knowledge and skills on behalf of their clients, members of a profession are granted the freedom to practice and to regulate themselves.

Professionals, as such, are held to different standards of conduct from other persons. Relationships and interactions that may be ethically unproblematic among nonprofessionals may be unacceptable when one of the parties is a professional. An individual may have a personal interest that is perfectly acceptable in itself, but it conflicts with an obligation the same individual has as a health care professional. The nature of professions is such that “the human needs the professions address and the human relationships peculiar to them ... are sufficiently distinct to warrant, indeed to demand, expectations of a higher morality and a greater commitment to the good of others than in most other human activities.” The clinical relationship is one of both great intimacy and great disparity in power and knowledge, giving rise to special obligations for health care professionals.

A boundary violation occurs when a therapist’s behavior goes beyond appropriate professional limits. Boundary violations generally arise when the interaction between parties blurs their roles vis-à-vis one another, or creates a “double bind” situation in which a personal interest displaces the professional’s primary commitment to the patient’s welfare in ways that harm—or appear to harm—the patient or the patient-clinician relationship, or might reasonably be expected to do so.

A variety of standards establish the limits of appropriate professional behavior, whether those limits are explicitly enumerated in standards of conduct, codes of ethics, or law, or tacitly conveyed through professional training and widespread acceptance. Individuals who seek help must rely on the professional they consult to be trustworthy when clinicians behave in ways that call their professional judgment and objectivity into question, the trust on which the relationship depends is compromised. And when trust is compromised, the efficacy of the therapeutic relationship is adversely affected.

It is important to note that personal and professional interests are not inherently in conflict with one another; in fact, they often coincide. A clinician’s personal desire to be compassionate is compatible with his or her professional obligations. It is natural to want to earn money through one’s professional activity. That desire becomes problematic only when the personal interest in earning a livelihood interferes with one’s commitments and obligations as a health care professional. Standards regarding professional boundaries can be found in a variety of sources. Directly or indirectly, professional codes of ethics, consensus statements, position papers, policies, and laws define the boundaries of appropriate behavior for professionals.

Thus, for example, the National Association of Social Workers’ Code of Ethics requires that social workers “not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client” and broadly defines “dual or multiple relationships,” but does not suggest criteria by which professionals should assess the nature or level of risk a particular dual relationship would pose for a client. The message implicitly shared by all such documents, however, is that being a professional entails forgoing some interactions or relationships in which one might otherwise wish to engage in order to protect the interests and well-being of clients/patients.

Many kinds of interaction potentially interfere with the primary clinical relationship between practitioner and patient and pose concerns about acceptable conduct for clinicians. Becoming socially involved or entering into a business relationship with a patient, for example, can impair, or appear to impair, the professional’s objectivity. Accepting a gift is sometimes an appropriate way to allow a patient to express his or her gratitude, and at other times is problematic. Showing favoritism by giving a particular patient extra attention, time, or priority in scheduling appointments, for example can cross the boundary between action that is appropriate advocacy on behalf of a particular patient and action that is unfair to others. Such interactions or activities are ethically problematic when they can reasonably be expected to affect the care received by the individual or by other patients or the practitioner’s relationships with his or her colleagues, or when they give the appearance of doing so. Yet not all behavior that might be considered inappropriate necessarily violates professional obligations. Health care professionals should be alert to situations in which they may be likely to be motivated to behave in ways that violate accepted ethical standards. Ambiguous interactions and relationships, for example, have the potential both to impair the professional’s objectivity and compromise his or her judgment, and to give rise to conflicting expectations on the patient’s part, which can contaminate the therapeutic relationship and potentially undermine the patient’s trust.

Finally, seeming to “play favorites” by accommodating individual patients in special ways can also raise concerns about ethical professional boundaries. Health care professionals commit themselves to treating all patients fairly. Patients often need more than just clinical care, and it is not necessarily inappropriate for professionals to provide help in other ways. But their actions on behalf of a particular patient must not adversely affect the clinical relationship with that patient or compromise the care available to other patients, or appear to others to do so. Just what activities might constitute a violation of professional boundaries depends very much on the specific context in which such actions take place and their foreseeable likely consequences for others.

Recommendations Health care professionals should beware of interacting with any patient in ways that could reasonably be expected to create awkward situations for either party, compromise the professional’s primary commitment to patient welfare, or call the professional’s objectivity into question. While not every business or social interaction or relationship between a health care professional and a patient necessarily violates ethical professional boundaries, professionals should critically examine their own actions by considering the following:  Is this activity a normal, expected part of practice for members of my profession?  Might engaging in this activity compromise my relationship with this patient? With other patients? With my colleagues? With my institution? With the public?  Could this activity cause others to question my professional objectivity?  Would I want my other patients, other professionals, or the public to know that I engage in such activities? If the answers to these questions indicate that an activity may violate professional ethical boundaries, the clinician should:  Determine if there are applicable standards.  Consult a trusted and objective peer for a second opinion about the activity.  Seek assistance from a supervisor or ethics committee.  Communicate his or her concern to the individual involved.  Transfer the patient to another clinician’s care if the professional relationship has been compromised, or if avoiding the violation will damage the relationship. As well, it is imperative that health care professionals be familiar with:  Relevant professional codes of ethics, standards of practice, guidelines, and position statements; Applicable policies in their facilities; and Laws pertaining to relationships between patients and health care professionals.

Online Therapy

Individuals who provide psychotherapy over the Internet are required by law to be licensed. The licensed psychotherapist must obtain verbal and written informed consent from the consumer or the consumer’s representative. Informed consent should include the following:

  1. Fee for Service – including acceptable forms of payment, whom the fee should be paid to and how the fee should be paid.
  2.  Confidentiality and the limits to confidentiality. Include a complete description of the methods used to insure online security of confidential information.
  3. Inform the consumer of the risks and benefits of participating in online psychotherapy.
  4. Describe all existing laws regarding patient access to medical information.
  5. The patient or the patient's legal representative retains the option to withhold or withdraw consent at any time.
  6. The signed written consent form shall remain as part of the consumer’s record.
  7. Failure to comply with informed consent should be considered unprofessional conduct.

Definitions of Online Communications

Telemedicine means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes telemedicine.

Interactive means an audio, video, or data communication involving a real time (synchronous) or near real time (asynchronous) two-way transfer of medical data and information.

Surrogate decision making means any decision made in the practice of medicine by a parent or legal representative for a minor or an incapacitated or incompetent individual.

Benefits and Limitations: Counselors inform clients of the benefits and limitations of using information technology applications in the counseling process and in business/ billing procedures. Such technologies include but are not limited to computer hardware and software, telephones, the World Wide Web, the Internet, online assessment instruments and other communication devices.

When providing technology-assisted distance counseling services, counselors determine that clients are intellectually, emotionally, and physically capable of using the application and that the application is appropriate for the needs of clients.

When technology-assisted distance counseling services are deemed inappropriate by the counselor or client, counselors consider delivering services face to face.

Counselors provide reasonable access to computer applications when providing technology-assisted distance counseling services.

Counselors ensure that the use of technology does not violate the laws of any local, state, national, or international entity and observe all relevant statutes.

Counselors seek business, legal, and technical assistance when using technology applications, particularly when the use of such applications crosses state or national boundaries.

Online Therapy and Informed Consent

As part of the process of establishing informed consent, counselors do the following:

1. Address issues related to the difficulty of maintaining the confidentiality of electronically transmitted communications.

2. Inform clients of all colleagues, supervisors, and employees, such as Informational Technology (IT) administrators, who might have authorized or unauthorized access to electronic transmissions.

3. Urge clients to be aware of all authorized or unauthorized users including family members and fellow employees who have access to any technology clients may use in the counseling process.

4. Inform clients of pertinent legal rights and limitations governing the practice of a profession over state lines or international boundaries.

5. Use encrypted Web sites and e-mail communications to help ensure confidentiality when possible.

6. When the use of encryption is not possible, counselors notify clients of this fact and limit electronic transmissions to general communications that are not client specific.

7. Inform clients if and for how long archival storage of transaction records are maintained.

8. Discuss the possibility of technology failure and alternate methods of service delivery.

9. Inform clients of emergency procedures, such as calling 911 or a local crisis hotline, when the counselor is not available.

10. Discuss time zone differences, local customs, and cultural or language differences that might impact service delivery.

11.Inform clients when technology assisted distance counseling services are not covered by insurance.

Sites on the Internet

Counselors maintaining sites on the World Wide Web (the Internet) do the following:

1. Regularly check that electronic links are working and professionally appropriate.

2. Establish ways clients can contact the counselor in case of technology failure.

3. Provide electronic links to relevant state licensure and professional certification boards to protect consumer rights and facilitate addressing ethical concerns.

4. Establish a method for verifying client identity.

5. Obtain the written consent of the legal guardian or other authorized legal representative prior to rendering services in the event the client is a minor child, an adult who is legally incompetent, or an adult incapable of giving informed consent.

6. Strive to provide a site that is accessible to persons with disabilities.

7. Strive to provide translation capabilities for clients who have a different primary language while also addressing the imperfect nature of such translations.

8. Assist clients in determining the validity and reliability of information found on the World Wide Web and other technology applications.

Internet counseling, is defined by NBCC as "the practice of professional counseling and information delivery that occurs when client(s) and counselor(s) are in separate or remote locations and utilize electronic means to communicate over the Internet." This definition would seem to include Web pages, email, and chat rooms but not telephones and faxes. The NBCC makes a statement that it does not advocate for or against Internet Counseling (NBCC, 1998). Some therapists who say that internet counseling is not counseling have Web sites available to people. Most of the Web sites have some kind of disclaimer stating that the information found there is only advice, e-therapy, information and education, or a supplement to therapy.

One of the counseling profession's main concerns will be of those who are unlicensed persons promoting themselves as competent Internet counselors. When a counselor is unlicensed, a state has no regulatory authority, unless there is a law in that state that will allow prosecution as a criminal act for practicing counseling without a license, or gives the board regulatory authority. Unlicensed cyber counselors are almost legally untouchable, especially when a disclaimer statement is displayed stating what they are doing is not therapy.

State Regulations and Online

Similar to telemedicine, the issues of licensure and jurisdiction arise, except that counseling boards have not begun to address the problem. A client who obtains counseling services via the Internet from a counselor licensed in the same state has recourse to that state's regulatory board for any violations against either the state code or standards of practice. However, if a client has a complaint about a counselor licensed in another state, it is unclear in which state to register the complaint. As indicated earlier, state medical boards have addressed this issue, but not in a uniform manner.

The Federation of State Medical Boards (FSMB) produced model legislation regarding telemedicine. This proposal is less than helpful as a guide, as the main responsibility for who can or cannot practice telemedicine in the state is left to each state (Orbuch, 1997). The Health On the Net Foundation has a Code of Conduct for medical and health web sites which might be a guide to those counselors who have Web pages, but counseling is not specifically mentioned in any of their eight principles (Health On the Net Foundation Code of Conduct for medical and health web sites). The International Society for Mental Health Online was formed in 1997 "to promote the understanding, use and development of online communication, information and technology for the international mental health community." The principles are broad and not of the nature of regulation. The American Telemedical Association has a policy that is a compromise between having a national medical license and restrictive state regulation. It proposes that the state should not restrict "virtual travel" of its patients to seek medical advice outside of the state. It also states that a non-face-to-face encounter by a patient with a physician in another state is regulated by the physician's home state.

Internet Counseling in one form or another is upon us (Lee, 1998). To dismiss it is unrealistic. We cannot ignore it, for to do so is to allow it to progress unregulated and open to charlatans, with the result of diminishing the profession of counseling. To change the quagmire into a quest will require risk-takers who are willing to be forward thinkers, embracing technology as having the possibility of a positive effect on the profession, and bringing wellbeing to a greater number of people.

Insurance Reimbursement

Reports to Third Parties

Patients are generally unaware of the information provided to their insurance carrier. As a provider, you may want to inform your patients about the information you plan to release to their insurance company as well as changes in what you release if required to so for authorization of sessions from the insurance company. It is not necessary to give your patients this information, but they may appreciate your candor.

If you bill insurance, you automatically must be HIPAA-compliant. If you choose not to bill insurance and instead collect directly from each patient, there are still some circumstances that require you to become compliant. Generally, it is simply a matter of following good office procedures that are designed to protect your patient's Private Medical Information (PMI). When a patient signs the standard HCVA 1500 form for billing, it gives permission to the provider to give Private Medical Information to an insurance carrier including their name, date of birth, insurance identification number or Social Security Number, and their DSM IV-R diagnosis. The information on this form should be treated with the highest security since release of it is illegal under HIPAA to anyone but the insurance company and the staff of the clinician's office. Staff should be educated about the importance of keeping this information secure since it is ultimately the clinician's responsibility if it is accidentally released. This information must not sent via the Internet since the Internet is not considered secure. Also, downloading information on a Notebook or other computer that may leave the office is considered unsafe since Notebooks are often stolen and the information on them, regardless of the level of security, has a possibility of being used by unauthorized people.

Billing that uses PMI must be sent by FAX or the US Postal Service. Some insurance companies have Internet billing that provides a secure link but it is incumbent on the clinician to determine that the material provided cannot be shared with persons or companies who are not authorized by the patient to receive the information.

Insurance companies may ask for further information about the patient including treatment plans, case notes, and other information. They can do this legally without further consent from the patient. Although many clinicians consider it less problematic to send the information to the insurance company without informing the patient about the release of additional information, other clinicians find it more ethical to inform the patient about the information that is requested. Some patients consider their privacy to be more important than the payment the insurance company may provide and would prefer that clinicians keep more of their information private. The population with whom the clinician works may help determine whether the patient would prefer to be informed about the information that may be sent for authorization of benefits.

Insurance companies must be billed only for sessions in which the patient was seen and only for the amount of time the patient was seen. While some insurance companies pay for telephone or Internet sessions, the clinician should check with the insurance company prior to billing for these services and should not bill for them under an "office" visit without prior approval. Billing for sessions in which the patient is not seen is considered fraud and is prosecuted as a felony. If you find an error in your billing or in the EOB from the insurance company for additional sessions, notify the insurance company immediately and return the payment to them, otherwise you are breaking the law. If your patient does not come to their session, you cannot bill the insurance company. It is best to include this information in the initial contract with your patients so they are aware that they will be responsible for the entire fee when they miss sessions, regardless of cause, unless the clinician decides they will not charge for that session. It is NEVER acceptable to charge the insurance company for missed sessions.

Patients who use insurance, must always pay their co-payment, rather than accepting insurance as "payment in full." Part of the contract the clinician has with the patient and the insurance company is to collect the co-payment, thereby making the patient at least partially responsible for payment of fees. It is incumbent on the clinician, unless otherwise agreed prior to service, to determine the fee the patient is to pay each session. Because of the complexity of using the insurance as a third-party-payer, it is sometimes necessary to bill the insurance and receive payment prior to determining how much the patient's co-pay is. Psychotherapists ethically are not to allow their patients to acquire bills they are unable to pay. If there are surprises in billing the insurance, make certain that they occur early in the treatment process to avoid the awkwardness of dunning patients for bills they did not expect or discovering you have made a large contribution to charity in unpaid psychotherapy hours. (No, you cannot deduct them).

In addition to general practices that apply to clinicians who bill insurance, there are also State Laws which are unique to each State. Inquire directly with your State to determine which laws apply to you and your practice.

Some States such have laws that require insurance companies to reimburse clinicians who are treating psychological conditions that are considered to have a medical basis in the same manner as other medical illnesses. Generally, these diagnoses include Major Depression, Manic-Depression, Generalized Anxiety, Eating Disorders, Schizophrenia, and other psychological illnesses that have been shown to either have a hereditary basis or be treated by medication. Insurance companies will supply a list of such illnesses. Psychological problems caused by environmental, social, or relational in nature are generally not covered under the "biologically based" clause. If an illness  is found to be "biologically-based" the limits on number of sessions for psychotherapy are suspended and the patient can be seen as often and for as long as is considered "medically necessary" by the therapist and the insurance company. Unfortunately, even if you are treating a severe schizophrenic who happened to purchase insurance in a State that does not recognize "biologically based" you may find yourself trying to treat your patient in the five sessions approved for psychotherapy by their insurance company.

Additionally, the insurance company can ask for treatment plans, progress notes, and other paperwork to ascertain that the treatment benefits the patient and falls within their guidelines for treatment of this type of disorder. The laws pertaining to this are Byzantine at best. Insurance companies are to have written rules about the type and amount of treatment allowed as well as provisions for determining whether the treatment is useful for the patient's improvement or recovery. Needless to say, these rules are vague and, in practice, rarely exist, but many States require that the insurance companies maintain these documents. In practice, be kind to yourself and your patient: call their insurance company to check on coverage and bill for the first session immediately so both you and your patient have a clearer idea about what their insurance will cover. As an added complication, some companies are retaining their insurance carrier but using another carrier, generally with less coverage, for psychotherapy so do not assume that an insurance carrier which is known to you automatically carries the same benefits for psychotherapy for one patient as it does with another. It is always worthwhile to check with the insurance carrier, bill in a timely manner, and keep good records about payment.

Ethical Standard: Counselors are accurate, honest, and objective in reporting their professional activities and judgments to appropriate third parties, including courts, health insurance companies, those who are the recipients of evaluation reports, and others. Counselors observe all applicable HIPAA regulations.

Termination of Therapy

 Abandonment Prohibited

Counselors do not abandon clients. Counselors make appropriate arrangements for the continuation of treatment, when necessary, during interruptions such as vacations, illness, and following termination.

Inability to Assist Clients

If counselors determine an inability to be of professional assistance to clients, they avoid entering or continuing counseling relationships. Counselors are knowledgeable about culturally and clinically appropriate referral resources and suggest these alternatives. If clients decline the suggested referrals, counselors should discontinue the relationship.

Appropriate Termination

Counselors terminate a counseling relationship when it becomes reasonably apparent that the client no longer needs assistance, is not likely to benefit, or is being harmed by continued counseling. Counselors may terminate counseling when in jeopardy of harm by the client, or another person with whom the client has a relationship, or when clients do not pay fees as agreed upon. Counselors provide pre-termination counseling and recommend other service providers when necessary.

Appropriate Transfer of Services

When counselors transfer or refer clients to other practitioners, they ensure that appropriate clinical and administrative processes are completed and open communication is maintained with both clients and practitioners.

Therapist Disclosures to Patients

Informed Consent

AAMFT Code of Ethics (2001):

Marriage and family therapists obtain appropriate informed consent to therapy or related procedures as early as feasible in the therapeutic relationship, and use language that is reasonably understandable to clients. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third-party observation.

ACA Code of Ethics Regarding Informed Consent

Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor. Counselors have an obligation to review in writing and verbally with clients the rights and responsibilities of both the counselor and the client. Informed consent is an ongoing part of the counseling process, and counselors appropriately document discussions of informed consent throughout the counseling relationship.

Types of Information Needed

Counselors explicitly explain to clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, and relevant experience; continuation of services upon the incapacitation or death of a counselor; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements.

Clients have the right to confidentiality and to be provided with an explanation of its limitations (including how supervisors and/or treatment team professionals are involved); to obtain clear information about their records; to participate in the ongoing counseling plans; and to refuse any services or modality change and to be advised of the consequences of such refusal.

Example of Informed Consent Contract from the APA

Informed consent is key to protecting the counselor and/or supervisor from a malpractice lawsuit (Woody, 1984). Simply, informed consent requires that the recipient of any service or intervention is sufficiently educated about what is to transpire, the potential risks, and alternative services or interventions, so that he or she can make an intelligent decision about his or her participation.

Standard of Care

Standard of Care refers to what most professionals would consider to be a reasonable amount and type of care.  Perhaps the reason there is no legally defined Standard of Care is because there are so many different diagnoses and combinations of diagnoses as well as so many treatment approaches that are considered valid within the psychotherapy community. When a clinician decides to treat a patient, s/he decides on a course that uses skills the clinician  has already acquired  and that are accepted within the psychotherapy community as a reasonable  means for treating the patient. At this point, the clinician writes a Treatment Plan as a template for ongoing psychotherapy. The treatment plan should include the diagnosis, reasons why that diagnosis is correct, the area(s) the treatment will address, the specific treatment for each diagnosis listed, the frequency of treatment with the reason(s) why that amount of treatment is required, and the length of treatment. The length of treatment, while always an estimation should be an exact amount of time. Revisions to the Treatment Plan can be made as other issues arise and should be included as Revisions to the Treatment Plan.

Despite having the Standard of Care not be specific, there are certain ethical and professional guidelines that should be followed.  These guidelines reflect a broad-based view that all clinicians should be compliant with what are considered to be normal standards within psychotherapy. Primary among these is a therapist should not do therapy outside of their area of expertise. While all clinicians have patients who present unique symptoms, this provision refers to offering treatment to a patient who presents with generally serious problems that the therapist has had no training, supervision, or experience in treating. An example of this is an eating disorder.

Generally, clinicians who treat eating disorders have training, supervision, and experience prior to embarking on the treatment of a person who could easily move into a life-threatening condition. An inexperienced therapist may not even know the patient was suffering from symptoms that indicated a medical emergency. Therapists, who act in a manner that goes beyond their level of expertise or even experience, may find themselves in legal trouble for providing treatment they are not qualified to provide. Instead of doing this, therapists should refer the patient to another psychotherapist who is an expert in treating patients with that diagnosis or they may seek supervision and training so they can become skilled at treating that population. If they decide to learn about treatment, the patient should be informed, in writing, and should give consent to the psychologist to share information with a supervisor as well as to provide treatment. This allows the patient to choose a different therapist who has more training as well as giving the therapist documentation that the patient was made aware of the situation prior to treatment and offered alternatives should the treatment fail and the patient or the patient's family decided to sue the clinician for attempting to treat a patient without adequate training or experience in the problem the patient suffered. If you have any doubts, refer the patient to another clinician rather than take a risk with the patient's life and your license.

The Standard of Care also refers to providing your patients with appropriate referrals within the medical community as part of your Treatment Plan.  Most importantly, patients who have diagnoses of different types of depression, anxiety disorders, eating disorders, psychosis, and other  illnesses considered to have a biological basis, must be referred to medical professionals who are licensed to evaluated the patient for possible medication. To share information with this physician requires that the patient sign a Release of Information so you may share their confidential information as well as a Release of Information so the physician may share confidential information with you. Choosing not to do so is a breach of ethical responsibility and endangers both the patient and the license of the therapist.  The physician is primarily responsible for the medication received by the patient. It is considered optimal, if the patient is prescribed medication, to have the clinician and physician work together as a team to give input to each about the usefulness of the medication and the psychotherapy. Patients who receive both psychotherapy and medication have consistently been shown, as a group, to have the best outcome. While this does not imply that an individual patient will do best in treatment without medication that decision is not left to the therapist. The wisest course is to refer all patients who present with a diagnosis that may include a biological basis to refer them to a physician for evaluation. A good course of action is to develop a network of physicians who are experienced at treating either a range of diagnoses or specific ones as well, to keep track of the insurance plans they accept, and to maintain a good working alliance with them over the years. Patients can be very difficult so having a physician who you trust to provide medication can be invaluable in the treatment process.

Another physician to involve in the treatment process to provide an optimal Standard of Care is the patient's Primary Care Physician.  Patients who present for psychotherapy often are taking other medications for other illnesses as well. The Primary Care Physician can be invaluable in flagging interactions between medications as well as providing a history of the patient that may include information omitted from the intake for various reasons. While some therapists prefer not to have information about the patient that was not provided within sessions, there are times when this preference can lead to life-threatening or even fatal consequences. Again, it is necessary to have the patient sign a Release of Information prior to talking with their primary care physician. Generally patients will see these communications as evidence of concern about their well-being. If they are reluctant or refuse to sign a release, discuss the matter with them and make a judgment about whether their reason is a valid one.

Some people are assigned a Primary Care Physician with whom they have little contact and may feel uncomfortable about having information given of a sensitive nature  to someone they consider to be a stranger. Sometimes understanding the risks and benefits of having a physician who holds all records about treatment and medication will provide them with the information to make an informed decision about their health care.

Therapists are expected to maintain a record of their treatment sessions with patients whether or not they are required to be HIPAA compliant. Under the Standard of Care, these notes generally include the patient's name, date of session, length of session, problems discussed, progress made, and plan for subsequent sessions (if any). If you are not required to be HIPAA compliant, these may be progress notes and may include your own impression of the session and thoughts about it and are not shared with the patient or other professionals. These should be kept in a locked container to maintain the patient's privacy.

Some clinicians are trained in techniques considered to be experimental or untested. Some are openly in violation of the Standard of Care for psychological services. Others feel competent without training or experience to treat people with symptoms that are dangerous to their own health and those around them. Do not be one of these therapists or you will face not only prosecution for malpractice but also criminal charges.

HIPAA

Covered Entities

All health professionals who send information via electronic transmission are considered “Covered Entities” and all HIPAA rules apply to them. What one must do as a Covered Entity to become compliant with HIPAA will be covered here. However, this should not be seen as covering all aspects of compliance.

Individual practitioners may have practices which differ in important ways from the majority of other practitioners and may require additional changes in their operating procedures to become compliant. Also, as the task force continues its work on integrating laws governing the health professions with HIPAA regulations, new laws may become an additional part of what one must do to become or remain compliant. Continue to check with your professional organizations and licensing boards for updates.

Exempt Mental Health Professionals

If you are a health care provider who never transmits electronic data regarding patients you are not required, at this time, to comply with the HIPAA regulations and are not considered a “Covered Entity.” However, HIPAA is very quickly becoming the standard of care by which health care providers’ office practices are regulated. In other words, you may be found to be negligent with your patient’s records and confidentiality if you do not move your office practices into compliance.

Business Associates

A business associate is a person or entity other than the therapist’s immediate workforce which receives confidential or PHI information from the therapist and provides services to the therapist. Among others, these may include a bookkeeper, lawyer, accountant, collection agency, answering service, computer service, or answering service. Business associates are not considered Covered Entities by HIPAA. The PHI may be given to a business associate only after the therapist has obtained a written contract with that person who notifies them that they must safeguard confidential information and how to do so appropriately. Samples of business associate contracts may be obtained online:

It is ultimately the therapist’s responsibility to be certain that the business associate follows the contract. Any subcontractors hired by the business associate must also sign a written contract agreeing to safeguard the PHI. If a business associate is found to have violated the contract, the therapist will need to make certain that steps are taken to repair the problem. If the problem is irreparable or if additional problems occur, the therapist may have to terminate the business associate and/or report the problem to HHS.

Another therapist to whom patients are referred during one’s absence is not considered a business associate. Additionally, janitorial, plumbing, electrical, or other repairmen are not considered business associates. Any postal service is not a business associate either under HIPAA. Business associate relationships are also not created by federal or state oversight committees such as the Medicare Peer Review. A therapist should not consider other therapists within one’s own practice or a consultant who is used for treatment purposes as a business associate. None of these are considered Covered Entities by HIPAA.

Becoming Compliant with HIPAA

Luckily, for a solo or small group of health professionals, the process of achieving HIPAA compliance is a fairly easy task, particularly if you have already been following the laws for privacy within your field. HIPAA has required many more administrative responsibilities for large corporations such as hospitals and large clinics. They are likely to need a full-time Privacy Officer while within a smaller private practice, you can designate yourself as the Privacy officer and take care of the necessary changes without a great deal of difficulty.

There are, however, several important changes which should be made as soon as possible. It is likely you will need to take and keep two sets of notes, learn new rules about patient’s access to their clinical records, learn the rules about the rights patients now have to amend their records, and develop new forms for Consent for services and Authorization by the patient to have others see their records or otherwise consult with you about your patient. Additionally, there are new rules about how one must secure records in computers. Unfortunately, if you somehow trigger a HIPAA audit, the likelihood of a lawsuit or fines is high. Additionally, you must be in full compliance immediately since there is no grace period.

Because HIPAA may become the general law which is followed by all states, it is likely that if you are not in compliance you will be open to a lawsuit under a state law you may have overlooked or which may have become law since your last law and ethics class.CEU

Steps to HIPAA Compliance

These steps apply only to solo practices or those of small groups and should not be taken to apply to hospitals or large clinics. The rules for these entities are different in important ways.

1. Designate a Privacy Office: This person is responsible for meeting HIPAA requirements by developing the necessary new documents, computer storage of patient records, training staff to comply with regulations, and review the changes. The privacy officer should post or provide each patient, whether new or continuing with a Notice of Privacy Practices. Additionally, an announcement should be placed in a public area which includes the following:

Our Privacy Officer is (name of person). The Privacy Officer:

(a) Can answer your questions about our privacy practices;

(b) Can accept any complaints you have about our privacy practices;

(c) Can give you information on how to file a complaint.

You can call the Privacy Officer at (enter your office number.)

2. Comply with the Privacy Rule The Privacy Rule applies to all Protected Health Information (PHI will be explained in #3 below.)Therapists are required to inform all patients of office privacy policies and how they are implemented. The patient’s records must be secured. Release of patient records for any reason either by the therapist, business associates, or staff cannot be done without informing the patient and obtaining the patient’s consent. These will be explained more thoroughly and suggestions for appropriate forms are available. A list of government sponsored and association sponsored websites will be provided at the end of this course.

3. PHI is Protected Health Information Information which you have about your patient which identifies them as an individual when it is transmitted is PHI. All such material must be treated with utmost caution and respect for the rights of your patient. When the patient is identified by name, Social Security Number, or other means which make the patient identifiable by others requires that the material be classified as PHI. If the information contains PHI, all past, present, and future physical or mental health diagnoses, treatment of any sort, and billing or payment become confidential material.

It is crucial that all material containing PHI or information which identifies a patient be protected within the office. It is advisable to personally chart the flow of this information through your office. For example:

Is incoming mail secure and protected from unauthorized disclosure?

Is the information created within the office stored and protected?

Is the information recorded in other areas, such as on or off-site billing personnel have storage which is protected from unauthorized disclosure?

Is all incoming and outgoing electronic transmission secure HIPAA also requires that PHI material be available to be legitimately shared, sent out, or given to those who are authorized. If you personally see where the information comes in, is stored, used, created, and released, you will feel more confident that there is protection for these documents all along the line of transfer. It is helpful to some therapists to pretend these are their own personal records when deciding whether or not the records of their patients are securely protected throughout the process.

HIPAA requires that PHI be available within five days to an authorized agency under law.

The consequences of failing to be in compliance with HIPAA can be severe. Fines of up to $250,000 and imprisonment for up to ten years or both can be levied against an individual who knowingly perpetrates “wrongful disclosure of individual, identifiable, health information. Additionally the Office of Civil Rights at the US Department of Health and Human Services can initiate administrative action against non-compliant therapists. Patients can also file lawsuits if a therapist is non-compliant because their private health information is endangered. There may also be civil penalties but these cannot exceed $25,000 in one year.

For more information and HIPAA resources please visit the link below provided by the Department of Health and Human Services, Center for Disease Control and Prevention.

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 clinicians 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 clinician 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 clinician 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 therapist was directly responsible or the Proximate Cause for the harm which was done. So, the patient must prove that the therapist 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 therapist's actions.

Despite these levels of proof which sound difficult to attain, many therapists 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 to determine whether or not the actions taken by the therapist was egregious enough to sanction them by loss or suspension of their license, additional classes to educate the therapist and attempt to prevent further problems, or other measures.

Clinicians 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. Therapist 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 therapist'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 clinicians. 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 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

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 clinician 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 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

Avoid actions by ethics committees by following the rules and guidelines for practice. Make it a habit to check in on the 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 professionals 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. Therapists, 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 therapist 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 therapists 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. Ethics, Law and Ethics CEUs, Online Ethics continuing education CEUs, Social Workers, Lmft, Counselors

The data on sexual misconduct has consistently shown that male therapists engage in sexual and other dual relationships with clients much more often than female therapists. In 1997, for example, the Ethics Committee received 15 complaints involving sexual misconduct and, of these, 13 involved a male therapist and female client (APA, 1998). The data also show that male therapists who engage in sexual misconduct are usually older than the female clients they become involved with, with the average therapist being between 42 and 44 and the client being between 30 and 33. No consistent relationship has been found between risk for sexual misconduct and theoretical orientation, professional experience, or education (Pope et al., 1993).

In a survey of a random sample of 596 psychology practitioners, Lamb and Catanzaro (1998) inquired about the psychologists' sexual boundary violations sexual boundaries violations and non-sexual boundary crossings. Fifty of the respondents (8%) reported having at least one SBV as a professional psychotherapist. Those reporting sexual boundaries violations were older than those reporting no sexual boundary violations (mean = 53.26 years versus 47.67 years) and most were men (41 men versus 9 women). The data revealed no consistent relationship between sexual boundary violations as a professional versus as a student, supervisee, or client (only five reported being involved in both types of relationships). However, those reporting sexual boundary violations were much more likely to report being involved in non sexual boundary crossings and to rate non sexual boundary crossings as less negative or problematic. Non sexual boundary violations reported significantly more often by those who also engaged in sexual boundary violations included "becoming social friends with a former client" and "giving a client theater, sports, or other event tickets that you learned at the last minute you could not use."

Finally, there is some evidence that the incidence of sexual relationships between therapists and their clients has declined somewhat in recent years. For example, in a survey of 368 clinical and counseling psychologists, Lamb, Catanzaro, and Moorman (2003) found that 3.5% reported being involved in sexual relationships with clients (compared to 4.4% reported by Pope in 1994). Their other findings were fairly consistent with the results of previous surveys - e.g., 84% of individuals who reported sexual involvement with clients were males, and the majority of their relationships were with female clients after therapy had been terminated.

Ethical and Legal Dimensions of Supervision

In recent years, it has become generally accepted that supervision draws upon knowledge and skills that are different than, and go beyond, those of psychotherapy. Similarly, the ethics and legal imperatives regarding supervision both encompass psychotherapy issues and go beyond them. Furthermore, because supervision is a triadic rather than a dyadic relationship, the supervisor must always attend to the need for balance between the counseling needs of clients and the training needs of the counselor.

With the increase of litigation in American society over the past generation, ethics and law have become intermingled (Bernard & Goodyear, 1992). It is important for the supervisor to remember, however, that ethics call the supervisor to a standard of practice sanctioned by the profession while legal statutes define a point beyond which a supervisor may be liable. For our purposes here, the functional interconnectedness between ethics and the law will be accepted.

SUPERVISOR COMPETENCE

First, the supervisor needs to know everything, and more, than is expected of the supervisee. Secondly, the supervisor must be expert in the process of supervision. It is not enough that clients are protected as a result of supervision; the contract between supervisor and supervisee dictates that supervision must ultimately result in better counseling skills for the supervisee. In order to accomplish this, it is generally accepted that the supervisor receive training in performance of supervision as well as supervision of supervision.

THERAPEUTIC RELATIONSHIPS

As part of the mandate of competence, the supervisor must determine not only if the supervisee has the knowledge and skill to be a good counselor, but if he or she is personally ready to take on clinical responsibility (Kurpius, Gibson, Lewis, & Corbet, 1991). The issue of personal readiness can lead the supervisor to blur the roles of supervisor and therapist in an attempt to keep the supervisee functional as a counselor. This is problematic for two reasons: (1) it compromises the objectivity of the supervisor, especially in terms of evaluation; (2) it may allow an impaired counselor to continue to practice at the risk of present and future clients.

INFORMED CONSENT

Informed consent is key to protecting the counselor and/or supervisor from a malpractice lawsuit (Woody, 1984). Simply, informed consent requires that the recipient of any service or intervention is sufficiently educated about what is to transpire, the potential risks, and alternative services or interventions, so that he or she can make an intelligent decision about his or her participation. Supervisors must be diligent regarding three levels of informed consent (Bernard & Goodyear, 1992): (1) the supervisor must be confident that the counselor has informed the client regarding the parameters of counseling; (2) the supervisor must be sure that the client is aware of the parameters of supervision (e.g., that audiotapes will be heard by a supervision group); and (3) the supervisor must inform the supervisee about the process of supervision, evaluation criteria, and other expectations of supervision (e.g., that supervisees will be required to conduct all intake interviews for a counseling center in order to increase interview and writing skills).

DUE PROCESS

Due process is a legal term that insures one's rights and liberties. While informed consent focuses on the entry into counseling supervision, due process revolves around the idea that one's rights must be protected from start to finish. Again, supervisors must protect the rights of both clients and supervisees. An abrupt termination of a client could be a due process violation. Similarly, a negative final evaluation of a supervisee, without warning and with no opportunity to improve one's functioning, is a violation of the supervisee's due process rights.

CONFIDENTIALITY

Confidentiality is an often-discussed concept in supervision because of some important limits of confidentiality both within the therapeutic situation and within supervision. It is imperative that the supervisee understands both the mandate of honoring information as confidential (including records kept on the client) as well as understanding when confidentiality must be broken (including the duty to warn potential victims of violence) and how this should be done. Equally important is a frank discussion about confidentiality within supervision and its limits. The supervisee should be able to trust the supervisor with personal information, yet at the same time, be informed about exceptions to the assumption of privacy. For example, supervisees should be apprised that at some future time, their supervisors may be asked to share relevant information to State licensure boards regarding their readiness for independent practice; or supervisors may include supervision information during annual reviews of students in a graduate program.

LIABILITY

Supervisors should not shun opportunities to supervise because of fears of liability. Rather, the informed, conscientious supervisor is protected by knowledge of ethical standards and a process that allows standards to be met consistently. There are three safeguards for the supervisor regarding liability: (1) continuing education, especially in terms of current professional opinion regarding ethical and legal dilemmas; (2) consultation with trusted and credentialed colleagues when questions arise; and (3) documentation of both counseling and supervision, remembering that courts often follow the principle "What has not been written has not been done" (Harrar, Vandecreek, & Knapp, 1990).

CONCLUSION

As gatekeepers of the profession, supervisors must be diligent about their own and their supervisees' ethics. Ethical practice includes both knowledge of codes and legal statutes, and practice that is both respectful and competent. "In this case, perhaps more than in any other, supervisors' primary responsibility is to model what they hope to teach" (Bernard & Goodyear, 1992, p. 150).

Author: NASW Code of Ethics, K. Gates, PhD, CA Statutes


REFERENCES
Bernard, J.M., & Goodyear, R.K. (1992). Fundamentals of clinical supervision. Needham Heights, MA: Allyn and Bacon.
Association for Counselor Education and Supervision. (Summer, 1993). Ethical guidelines for counseling supervisors. ACES Spectrum, 53 (4), 5-8.
Harrar, W.R., VandeCreek, L., & Knapp, S. (1990). Ethical and legal aspects of clinical supervision. Professional Psychology: Research and Practice, 21, 37-41.
Kitchener, K.K. (1988). Dual role relationships: What makes them so problematic? Journal of Counseling and Development, 67, 217-221.
Kurpius, D., Gibson, G., Lewis, J., & Corbet, M. (1991). Ethical issues in supervising counseling practitioners. Counselor Education and Supervision, 31, 58-57.
Ryder, R., & Hepworth, J. (1990). AAMFT ethical code: Dual relationships. Journal of Marital and Family Therapy, 16, 127-132. CEU
Sherry, P. (1991). Ethical issues in the conduct of supervision. The Counseling Psychologist, 19, 566-584.
Woody, R.H. (1984). The law and the practice of human services. San Francisco: Jossey-B

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