"I Hate It When That Happens..." - Law & Ethics For Psychologists by Pamela H. Harmell, Ph.D. 3 Credit hours - $74 Last revised: 03/05/2005 Course content © copyright 2004-2005 by Pamela H. Harmell, Ph.D.. All rights reserved. ContinuingEdCourses.Net is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists. ContinuingEdCourses.Net maintains responsibility for this program and its content. ContinuingEdCourses.Net is approved by the Association of Social Work Boards (ASWB) to offer continuing education for social workers, through the Approved Continuing Education (ACE) program. ContinuingEdCourses.Net maintains responsibility for its courses. ASWB provider #1107. ContinuingEdCourses.Net is approved by the National Board for Certified Counselors (NBCC) as an NBCC-Approved Continuing Education Provider (ACEP) and may offer NBCC-approved clock hours for events that meet NBCC requirements. ContinuingEdCourses.Net solely is responsible for all aspects of the program. NBCC provider #6323. ContinuingEdCourses.Net is approved by the California Board of Behavioral Sciences (CA-BBS) to offer continuing education for MFCCs (MFTs) and LCSWs. CA-BBS provider #3311. ContinuingEdCourses.Net is approved by the Ohio Counselor, Social Worker, & Marriage and Family Therapist Board (OH-CSWMFT) to offer continuing education for counselors, social workers, and MFTs. OH-CSWMFT provider #RST080501 & #RCX010801. Take the Course Take the Test Buy your Certificate

LEARNING OBJECTIVES

This is a beginning to intermediate level course. After completing this course, psychologists will be able to:

• Apply knowledge of the current APA Ethics Code to patient care and ethical situations
• Utilize knowledge of legal and ethical standards to minimize the risk of malpractice civil suits
• Identify and properly handle counter-transference and burnout issues
• Discuss patient welfare and protection of patients' rights
• Assess for suicide risk using the SAD PERSONS assessment tool
• Provide a safer environment for clients and caregivers through an understanding of current issues in dealing with dangerous patients
• Apply current issues of confidentiality, privilege, HIPAA, record-keeping, and the avoidance of fraudulent billing practices to one's professional practice

AUTHOR DISCLAIMER

Thank you for deciding to take this course!

The material contained in this course is the professional and personal understanding of the course author’s interpretation of the experts that have been cited throughout the text. Should any person wish to use this material for any purpose other than basic continuing education as it is presented here, that person should seek the original sources for his or her personal understanding.

The authors cited in this course are noted, accepted, and published experts in the field of legal and ethical issues in psychology. Cited herein are current opinions, case law when applicable, state rulings where the original decisions were made, and interpretations of the new APA Ethics Code, especially the fine work of Celia B. Fisher, Ph.D., Chair of the APA Ethics Code Task Force that completed the current revision (Fisher, 2003). The APA Ethical Principles of Psychologists and Code of Conduct 2002 revision will be used throughout this course. It is suggested that participants download the entire code for reference purposes throughout the course, and for future ethics dilemmas in the office.

This is in NO WAY a legal document nor does it offer legal advice or legal interpretations other than those of the experts as cited. It is also not a final decision on any ethical or legal subject, as all ethical and legal issues are constantly under revision and consideration. This material is not meant as a personal or clinical consultation, nor is it meant to be substituted for contact with an ethics committee, attorney, or professional consultant.

Most malpractice insurance carriers are routinely giving free legal consultation. If you have questions about legal and/or ethical practice issues, call your malpractice carrier, or, if you are a member of the American Psychological Association, they welcome calls as well.

Since this disclaimer applies to each section of the course, it will only be stated once in this beginning Section A.

Good Luck and I hope you enjoy the journey!

LEARNING OBJECTIVES FOR SECTION A

• To understand the basic elements of malpractice with regard to negligent treatment of a client or patient
• To become familiar with the 2002 APA Ethical Principles of Psychologists and Code of Conduct

INTRODUCTION TO THE COURSE

Many psychology licensing boards are now requiring a course in Professional Ethics or Professional Ethics and Law for every one- or two-year renewal of license. Since this is not a one-time requirement in most states, this course will be a fundamental or basics course; it will be followed each renewal period with a brief basics review, and updates and expansions to current standard of care, ethics, and changes in law and interpretations of legal decisions.

Throughout the course, you will be asked to take brief quizzes that are aimed at helping you learn and retain the material.

New material will be introduced with BOLD, ALL CAPS headings. You will find subheadings that are in Bold but not all caps.

When applicable, the relevant ethics code or codes from the code of ethics will be included for your perusal. When appropriate, the state case law will be included for your perusal as well. For example, the original Tarasoff (1976) Supreme Court ruling was decided in California, making the decision case law, also known as precedent. Shortly thereafter, several states developed their own version of Tarasoff. For this reason, it is wise to remain abreast of case law decisions made in other states that effect psychologists. References for material will be given throughout the text, with a reference list at the end of each section.

BRIEF INTRODUCTION TO LAW

Question 1 – Just for fun!

Our American system of law is separated into two divisions, Federal Law and State Law. In most cases, Federal Law supersedes State Law, except in special situations. Can you think of one?

Federal Law is superseded by State Law:

1. When someone who is not a U.S. citizen commits a felony
2. In some cases where murder is the issue
3. With HIPAA, when state law gives more protection to patient’s records

If you guessed (c), you are absolutely correct! With HIPAA laws, which are Federal Laws (to be discussed in another section), State Law supersedes Federal Law if the State Law provides more protection to the patient’s records and to the patient in general than do the provisions of the Federal HIPAA Laws. You may wish to record your answer for future review.

INTRODUCTION TO THE 2002 APA ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT

The complete title of the document is Principles of Psychologists & Code of Conduct (APA, 2002). The need for an ethics code arose after World War II when psychologists developed group tests to help the armed services quickly evaluate draft eligibility and to provide mental health services to returning soldiers. After numerous task force revisions and drafts approval by the membership, the first code was adopted by APA in 1952 and published in 1953.

The purposes of the current ethics code are many, including 1) establishing the integrity of the profession, 2) provision of a guide for proper and expectable professional behavior, 3) securing public trust, 4) self-monitoring, and 5) the ability to adjudicate (APA, 2002; Please see Fisher, 2003 for most recent interpretation of 2002 code). By adjudicate, the APA means to have the power to settle an ethics violation judicially by the ethics committee of the American Psychological Association.

There are five important reasons for having an ethics code:

• To prevent government intrusion into the profession of psychology
• To aid professional autonomy in the practice of psychology
• To avoid undue interference into the profession from outside regulators
• To assert self-regulation of psychology
• To protect the profession from internal discord

In other words, without an ethics code, psychologists would be vulnerable to outside regulators who might use their powers of adjudication in cases of ethics violations. Or worse still, outside regulators might use inappropriate standards to adjudicate ethics violations when those standards are not applicable to psychologists. It is always more appropriate for those within the profession to make decisions about fellow psychologists who violate the ethics of the profession rather than outside parties who are less familiar with the profession.

The current code was adopted in 2002 and took effect in June 2003. We will use the current code in this course.

BASICS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION ETHICS CODE

There are two primary sections:

The Aspirational & Unenforceable Sections

The Introduction section discusses the intent and organization of the code and provides guidance only. IT IS NOT A LEGAL DOCUMENT. Even though some states adopted the 1992 Code as legal and binding (for example, Georgia adopted the 1992 code as a legal document), the creators did not have this in mind when they wrote it. The Ethics Code looks at “reasonable” prevailing current judgment and considers the dictates of one’s own conscience while strongly encouraging professional consultation with colleagues.

The Preamble section discusses psychologists’ commitment to science in the improvement of the lives of others. Psychologists have a lifelong commitment to act ethically. The Preamble sets the stage and prepares the reader for the General Principles that follow.

The General Principles A through E guide and inspire psychologists to act with the very highest ideals while considering patient welfare as their primary concern at all times.

General Principles, as opposed to Ethical Standards (numbered codes) are aspirational with the intent to guide and inspire psychologists to strive toward the highest ethical ideals of the profession. They do not represent obligations and do not form the foundation for sanctions or censure.

Principle A: Beneficence and Nonmaleficence

• Psychologists strive to benefit those with whom they work and take care to do no harm.

Principle B: Fidelity and Responsibility

• Psychologists strive to contribute a portion of their professional time for little or no compensation or personal advantage.

Principle C: Integrity

• Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology.

Principle D: Justice

• Psychologists act with fairness and justice.

Principle E: Respect for People’s Rights and Dignity

• Psychologists respect the dignity and worth of all people. Psychologists fight against prejudice.

The Enforceable Section

The 82 numbered standards are the only enforceable part of the Ethics Code. It may seem to the casual observer that these standards are “nitpicky” or even extreme. However, every code has its base in either an actual complaint or serious concern directed to the APA ethics committee. These standards can be used by any state or APA ethics committee adjudication proceedings, and have often and routinely been used in malpractice suits and licensing board violation adjudication cases. Malpractice attorneys use the numbered enforceable standards as the “standard of care” of the profession (to be discussed later).

Question 2

The APA Code of Ethics is a legal document:

1. True
2. False

Question 3

The Aspirational (Unenforceable) section of the code contains:

1. Aspirations, guidelines, introduction
2. Introduction, guidelines, aspirations
3. Introduction, preamble, general principles A through E

NOTE: See Section A – Introduction to APA Ethics Code for review of answer material below:

Question 2 is (b) false. The document is NOT to be used as a legal document, but as a guideline and set of standards to follow for psychologists.

Question 3’s answer is (c) Introduction, Preamble, General Principles, as explained in Section A above.

THE ELEMENTS OF MALPRACTICE

There are four elements of a civil suit for malpractice and all four have to be believed to be met by an attorney in a court of law. In some cases, the difficulties of attempting to prove a civil suit, or defending against a complaint, are reflected in an out-of-court settlement. Sometimes the malpractice carrier advises that the expense of going to court for the plaintiff - both emotionally and financially - is not worth the risk.

A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether or not the psychologist has breached the standard of care (Black’s Law Dictionary, 1996). (Standard of care will be defined below.)

Duty of Care. A Duty of Care arises when there has been an agreement between the psychologist and a current client that the pair will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because a patient does begin to develop an assumption he or she has begun treatment after two or three sessions. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for consideration of longer-term therapy? Is the work being done merely as an evaluation using assessment instruments? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavior model of treatment? If a civil suit should occur, and the parties had not decided whether they wished to work together by the third session or so, the court may decide for them that a “duty of care” had been established. Exchange of money alone does not establish a duty of care; however, if there is nothing else for the court to consider, it may look at any financial matters in an attempt to establish responsibility.

Standard of Care. This broad term refers to the level of proficiency against which any other psychologist’s work will be measured or compared. In other words, what any other trained psychologist would do with reasonable experience. This is also known as the minimum below which a psychologist must not fall (Stromberg, et al., 988; Caudill & Pope, 1994).

Generally, the standard of care is defined by state statute (i.e., California Penal Code 11166, child abuse report law; California Welfare and Institutions Code 5150, involuntary hospitalization) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a ”collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and must be followed just as closely as law that has progressed through the legislative process.

Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest” (p. 564). This is generally known as the “reasonable therapist doctrine.” These authors go on to explain that competent treatment can lead to unsuccessful results without meaning that the treatment was negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used, a judgment call that proves wrong is not actionable” (p. 564).

Demonstrable Harm. Can harm be shown to have occurred to the “victim”? Was anyone hurt or harmed? If so, what are his or her damages? The idea is to return a harmed individual (client or patient) to the condition in which the person existed prior to the harm. This is done in only one way in a civil suit: throw money at the damage! In many cases of demonstrable harm with psychologist defendants, the damage claimed is psychological in nature. Therefore, it is much harder to prove and harder to approximate the financial award.

Proximate Cause. Proving that the psychologist’s wrongful conduct caused the damage, and that it was the direct or proximate cause of the harm of the plaintiff’s injury, is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychologist for his or her acts that “caused” the damage to the client. The question is - would the client have been damaged if the psychologist had done anything differently? Where injury is alleged to occur, the client must still prove that the alleged injury is caused by the psychologist’s breach of the standard of care. In 1991, the California Supreme Court adopted a definition of proximate cause easily understandable to lay people - the “substantial factor” element. Was the therapist’s action a “substantial factor” in causing the patient’s injury? (Caudill & Pope, 1995).

Jenny Vignette

Jenny has been Dr. Brown’s client for five months. She calls Dr. Brown saying she is suicidal and wants to “do herself in.” Dr. Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks and to “get social and meet a new lover” so that she can have a good time and “be normal.”

Later Jenny feels so bad she takes the entire bottle of her antidepressants with a bottle of vodka in a suicide attempt. When she calls Dr. Brown the next day feeling suicidal and depressed, he tells her “look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now, just relax.”

Jenny takes the rest of her medication and winds up in the hospital. Her family consults an attorney who is considering filing suit based upon the four elements of a malpractice suit.

NOTE: See Section A – Elements of Malpractice for review of answer material below:

Question 4

Jenny and Dr. Brown had been seeing each other for five months in a therapeutic relationship. Which element of malpractice necessary to meet a civil suit has been met thus far?

1. Duty of Care established
2. A breach of the Standard of Care
3. Demonstrable Harm evident
4. Proximate Cause shown

Question 5

As far as the second element of a civil suit for malpractice, Dr. Brown was probably not adhering to the current Ethical Principles of Psychologists and Code of Conduct, the statutes of his state, nor the recent case law. Therefore he probably:

1. Did not create a Duty of Care
2. Breached the Standard of Care
3. Demonstrated Demonstrable Harm
4. Provided Proximate Cause

Question 6

Since Jenny wound up in the hospital, this probably is evidence of the third element of a civil suit for malpractice, which is:

1. Duty of Care
2. Breach of Standard of Care
3. Demonstrable Harm
4. Proximate Cause

Question 7

If Jenny would have been fine if her Dr. Brown had treated her in a more appropriate manner, this is evidence of the fourth element of a civil suit of malpractice, which is:

1. Duty of Care
2. Breach of Standard of Care
3. Demonstrable Harm
4. Proximate Cause

Questions 4 through 7 in order:

(4) Answer is (a) - Duty of Care. This is established when a client-therapist relationship is created because the therapist is actually treating the client or patient. (5) Answer is (b) - breaching the Standard of Care of his profession. In other words, he was not following the “reasonable therapist doctrine”: by doing what another reasonable therapist would most likely do. (6) Answer is (c) - Demonstrable Harm. Since Dr. Brown’s patient wound up in the hospital, harm was able to be demonstrated. (7) Answer is (d) - Proximate Cause. This can be claimed by the attorney of the patient. In other words, the therapist “caused” the demonstrable harm or caused the patient’s damages If it could be proven (which would be very difficult to do) that the patient would not have suffered damages of any kind, or the damages would not have been as serious, had Dr. Smith done anything differently, then he might prevail in this element.

METHODS OF PREVENTING MALPRACTICE

Experts in legal and ethical matters agree on these methods of minimizing the risk of a malpractice suit (Caudill & Pope, 1995; Welfel, 2002; Clayton & Bongar, 1994; Cranston et al.,1988).

• Professional consultation (discussed later)
• Personal therapy
• Membership in professional associations
• Continuing education
• Familiarity with current treatment methods
• Familiarity with current journals
• Knowledge of the current standard of care
• Proper referrals (i.e., hospitalization, medication, adjunctive treatment)
• Proper documentation of patient care

Ethics Codes that Apply

General Principles – Unenforceable

General Principles, as opposed to Ethical Standards (numbered codes) are aspirational with the intent to guide and inspire psychologists to strive toward the highest ethical ideals of the profession. They do not represent obligations and do not form the foundation for sanctions or censure.

Question 1

One of the unenforceable principles A through E includes a strong suggestion for “pro bono” services. Which one is it?

1. Principle A: Beneficence and Nonmaleficence
2. Principle B: Fidelity and Responsibility
3. Principle C: Integrity

The answer is (b) Principle B: Fidelity and Responsibility. See Principle B for further clarification.

CONSIDERING CLIENTS IN THE EARLY PHASE

There are numerous elements to be considered when a new client calls for an appointment for treatment. There are five main factors that must be considered no matter who is on the other end of the phone or who is seeking therapy with a psychologist. These “five always” are as follows: We could use the shortcut CCARQ.

Culture

What is the culture of the person seeking treatment with you? Lee and Richardson (1992) tell us that every therapy relationship is a “cross-cultural” relationship because everyone who enters a psychologist’s office is of a different culture from the psychologist, no matter who they are. Additionally, it is not wise to “judge a book by its cover.” In other words, a potential client may look or sound one way, but live in a completely different multicultural family than what appears at the initial visit. One may be an African-American client with a Chinese domestic partner. Psychologists should never make assumptions about a client’s culture and cultural sensitivities, or those of a client’s family.

Counter-transference

This means that every client must be considered for the possible impact he or she has or may have on the psychologist. The psychologist must be able to intelligently evaluate his or her condition, reactions, behavior, feelings, and ability to handle difficult situations in order to avoid the negative effect of counter-transference on the therapeutic relationship (e.g., premature termination, inappropriate behavior by the psychologist).

Area of Competence

All psychologists should be able to handle all the diagnoses in the DSM, which is not realistic! What this actually means is that psychologists must be able to identify their limitations - when they should refer a client due to lack of training, counter-transference, or inexperience. In actuality, psychologists are expected to know how to handle all diagnoses, or know when to refer out due to lack of expertise, competence, or desire to treat, or know when to get proper consultation when gaining new skills and competencies.

Rule out General Medical Condition or Substance Abuse

It is mandatory to rule out any general medical condition or substance abuse that may reasonably be causing, or be related to, mental health symptoms. For example, a person who has panic attacks or any other “head-to-toe” symptoms of anxiety disorders may be suffering from a hormonal imbalance or thyroid dysfunction rather than an actual DSM diagnosis. General medical conditions (See Axis III in the DSM-IV-TR, APA, 2002) must be ruled out by a medical doctor prior to treatment for a mental disorder, especially one that includes physical symptoms. A psychologist cannot rule out a GMC or substance abuse in the blood stream (lab tests) because it is outside of his or her area of competence (medicine).

Question the Reporter

It is not uncommon for a new client to attribute his or her range of symptoms to another person close to him or her such as a significant other or loved one. For example we might hear, “My significant other is an alcoholic and I don’t know what to do,” when the caller or our primary patient is actually the person with a drinking problem.

INTRODUCTION TO ACCOUNTABILITY

There are four mechanisms holding psychologists accountable for our actions as mental health professionals. A brief description of each follows:

Mechanism 1 – State Licensing Boards

A state licensing board is the agency that “giveth and taketh away” the ability to practice psychology. It decides how many hours of continuing education must be taken to renew the license and continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychologist fails to respond to its dictates.

Mechanism 2 – Ethics Committees

There are three possible ethics committees that can regulate psychologists:

• The local county ethics committee generally provides an on-call service to members aiding them in interpreting the APA ethics code when they have questions.
• The state ethics committee, which, in California, does not adjudicate ethics violations.
• The APA ethics committee, which is the most important ethics committee. It sets guidelines of practice that are considered the standard of care in the profession. It can also take sanctions against the psychologist for improper behavior and violations of the ethics code. All ethics committees for psychologists use the APA Ethical Principles of Psychologists and Code of Conduct (2002).

Mechanism 3 – Civil Suit for Malpractice

Mechanism 3 is a generally unpleasant factor of American society – when one citizen takes civil action against another citizen. In a civil suit, the only thing being claimed is financial damages, and the only remedy is money. However, punitive damages are also a possibility where the court awards extra financial damages as punishment in a particularly egregious situation against the defendant. A psychologist does not want to be confronted by this element of accountability, as it is generally grindingly slow and complex, not to mention painfully expensive.

Agency Four – Criminal Allegations (Attorney General Involvement)

Criminal allegations are the least likely of the four mechanisms holding a psychologist accountable for practice behavior. If there is an unfortunate outcome where the attorney general goes after a psychologist’s license and prosecutes for criminal allegations, the psychologist who is found guilty can find himself or herself spending time in a jail cell.

LEARNING OBJECTIVES FOR SECTION B

• To differentiate and understand privacy, confidentiality, and privilege
• To learn updates, notable case law, current ethics codes, and standard of care for dangerous patients

INTRODUCTION TO PRIVACY, CONFIDENTIALITY & PRIVILEGE

Privacy is suggested by the Fourth Amendment to the Bill of Rights (December 15, 1791) of the Constitution of the United States of America. Basically, it gives people the “right to secure their houses, papers, and effects, against unreasonable searches and seizures…” (The United States Constitution). It is the most basic of the three terms in this section (Cato Institute, 1776/2002).

Confidentiality is an ethics term that denotes a contract between the patient and the psychologist where the psychologist promises to keep all therapy communications confidential, except those required to be disclosed by law, such as child abuse and Tarasoff. It is a term seen in ethics codes and standard of care documents.

Privilege is a legal term which pertains to who may consent to release of confidential patient material in legal proceedings such as subpoenas for records or testimony. Privilege generally refers to testimony in a deposition or in a court setting. It may also refer to release of records in a deposition or in court.

“Holder of Privilege” - In most states, the patient holds privilege. This means that the patient makes the decision as to whom the psychologist may release testimony or records.

NOTE: Notice “parent” is not mentioned anywhere below. Be sure to check your state’s laws on privilege with adults, minor children, and adolescents.

Many states have laws stating the following when the patient is a minor, incapacitated, or unable to hold his or her own privilege:

1. The guardian holds privilege - One who has legal authority for an incapacitated person (p. 282)
2. The conservator holds privilege - Appointed by the court for an incapacitated person (p. 127)
3. The personal representative holds the privilege - In the case of the patient’s death, one who manages the person’s legal affairs because of incapacity or death (Black’s Law Dictionary, 1996, p. 541)

Question 1

You receive a subpoena for the therapy records of Jane Doe, a current patient. In order to release the therapy records, you need a signed release for the records from Jane. This falls within the area of:

1. Privacy
2. Confidentiality
3. Privilege

Question 2

LaTesha is the sister of your deceased client. LaTesha calls you wanting her sister’s therapy records and says she has sent you a self-addressed, stamped envelope in which you are to mail her sister’s records to her. She would also appreciate it if you send them as quickly as possible for her own personal reasons. Can you release the records to LaTesha’s sister? Why or why not?

1. Yes because the sister is the current holder of privilege
2. Yes because you are the current holder of privilege and you can decide to whom you may release the therapy records
3. No because the court has to decide who is the holder of privilege
4. No because the personal representative is the holder of privilege in this case

NOTE: See Section B - Introduction to Privacy, Confidentiality & Privilege for a review of the answer material below.

For Question 1, (c) is the best answer, as subpoenas are related to release of legal documents. Even though a subpoena is issued by an attorney and does not have the power of a court order (which is issued by a judge), it still must be attended to and involves the element of privilege.

Question 2 is a bit more complicated, as the best answer is (d), personal representative, in many states. However, if there is no personal representative of record, the court will decide or appoint one; thus (c) could be a viable answer in some cases where there is no personal representative stated in the Will of the deceased patient. Once again, be certain to review the laws related to a deceased patient’s privilege in your state.

Ethics Codes that Apply to Confidentiality

INTRODUCTION TO DANGEROUSNESS

Tarasoff v. Regents of University of California, 17 Cal.3d 425, 444 (1976)
“Privacy ends where public peril begins.”

After going through the legislative process, a law is given a specific number - for example, Evidence Code XXX or Penal Code XXX. Once a law is codified in this manner, psychologists are obligated to follow the dictates of any laws that are relevant to psychology. However, equally important and just as powerful, is “case law.” Case law is defined as “the collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). In essence, case law must be followed just as closely within the state of its legislation as is statute, and it is considered precedent. Case law is relevant to this discussion, as Tarasoff began in California as case law in 1976.

Most psychologists have heard of the obligation to protect third parties known as the “Tarasoff Ruling” or the duty to warn and protect. This ruling has probably spawned more litigation than any other subject with regard to the psychologist’s duty to protect (Stromberg et al., 1988).

In 1976, the California Supreme Court Justices made some important rulings that changed the responsibilities for all mental health professionals in all states forever.

Prosinjit Podder, a young man from India, came to America to study engineering, after his family had proudly saved the money to send him to Berkeley, California. He became the roommate of the brother of a young woman with whom he fell hopelessly and madly in love. Tatiana Tarasoff was a beautiful young woman of Russian descent who enjoyed folk dancing, going out with her friends, and being around boys. Her father was exceedingly strict, wanting her to remain close to home; he did, however, allow her to accompany her brother Alex to various folk dancing events, which is where she became acquainted with Mr. Podder.

Eventually, Prosinjit Podder became outraged and dissatisfied when Tatiana’s level of commitment to the relationship did not meet his own. Feeling as if he was being “driven crazy” and humiliated by Tatiana’s disinterest, Podder - after confessing his desire to cause her bodily harm to his psychologist at Cowell Memorial Hospital, an outpatient clinic serving the University of California, Berkeley - eventually stalked and murdered Ms. Tarasoff

In 1970, her parents sued all involved with the mental health facility. In an appellate decision (1974), an affirmation of the appellate decision by the California Supreme Court Justices in 1976 took place, and case law was made.

Currently, all states have enacted some version of the original Tarasoff ruling that was codified in California’s Civil Code 43.92 a&b in 1985. Here, we will use the original Tarasoff Supreme Court Justices’ Ruling as a foundation for discussion, Remember, however, that each psychologist has the responsibility of discerning the Tarasoff statutes and case law in his or her own state.

Tarasoff (1976) originally declared that, in order to breach the dangerous patient’s confidentiality, all of the following must be present:

Communicated to the psychotherapist directly by the patient

• The threat must come directly from the patient to the psychologist unless it is an incapacitated patient or a minor patient
• Ewing v. Goldstein (2004) will be discussed later in the section

Serious threat of physical harm that is imminent

• A proper dangerousness assessment must be used for evaluation of serious threat of physical harm
• Each case must be evaluated for imminent danger (evaluation for imminent danger and serious threat of physical harm will be discussed later in this section)

Reasonably identifiable victim

• The justices ruled that if the psychotherapist can determine who the potential victim is “with a moment’s reflection” then this third determinant of Tarasoff is met
• What the justices meant by “a moment’s reflection” was that the therapist should consider who the patient has been discussing in recent sessions. Has the person been mentioned with any animosity or threats? Can the psychologist determine whom the victim is by evaluating negative statements made about a potential victim?

Continuing, the Supreme Court Justices then dictated what is to be done once the threat reaches the threshold of the three requirements stated above. The psychologist should do the following:

Warn the potential victim(s)

• Once again, if, “with a moment’s reflection,” the psychologist is able to identify who is in danger from the potential actions of his or her patient, the victim is known to the psychologist, and able to be warned

Notify authorities

• This generally means notifying the police, sheriff, Department of Children and Family Services, 911, or other emergency services

Take steps to prevent the threatened danger (Stromberg et al., 1988):

“The most important point is that … psychologists’ duties are not limited to a ‘duty to warn,’ but broadly include taking all steps which constitute ‘reasonable care [taken] to protect the intended victim” (Stromberg et al., 1988, p. 520-521).

Steps that have long been identified to help prevent danger to the public are as follows:

1. Increase frequency of sessions
2. Refer patient for medication evaluation
3. Refer patient for anger management
4. Adjunctive treatment referral (e.g., group, couple)
5. Involve support system (e.g., clergy, family, friends)
6. Increase phone contact with patient
7. Contract with patient not to harm another (“no-harm” contract)
8. Hospitalization – voluntary or involuntary

The Tarasoff Supreme Court Justices did not enumerate the above steps in exact detail. They did, however, direct psychotherapists to “take whatever other steps reasonably necessary under the circumstances.” (Tarasoff, p. 426).

Each state has its own laws regarding Tarasoff, when to breach confidentiality, and when to breach privilege in order to protect the public welfare. Psychologists are required to know these state laws in order to practice ethically and legally.

Ethics Codes that Apply to Dangerous Patients

The APA Ethics Code Section 4 Privacy and Confidentiality lends guidance.

Here, the code allows psychologists to disclose confidential information when permitted by law, to obtain a needed professional consultation, or to protect self (the client) or others from harm.

UPDATES AND ADDITIONS TO TARASOFF

Gross v. Allen 22 Cal.app.4^th 354 (1994)
“Duty to Inform”

A young woman at the University of Southern California (USC) insisted on entering an eating disorders inpatient program at Northridge Hospital after gaining weight due to prolixin injections. She was given injections rather than oral medication because she was severely suicidal. She had previously overdosed on her oral meds, tried to hang herself, and enlisted other methods of attempting suicide.

Her physician at USC, Dr. Allen, forbade her to enter the program, telling her she was inappropriate for the program due to her suicidal ideation and constant and serious attempts to take her own life. When she went to the director of the eating disorders program, Dr. Gross, in an attempt to enter the program despite her psychiatrist’s protestations, the eating disorders physician contacted the USC treating and prescribing physician. Dr. Allen failed to inform Gross of her severe suicidal behavior, despite his extreme objection to her appropriateness for the eating disorders program. So the woman was admitted into the eating disorders program as an inpatient.

Unfortunately, she sneaked in the prolixin tabs she had been hoarding and quickly overdosed (her mother failed to confiscate the oral prolixin that she took to Northridge with her). After five weeks in a coma, she was left with permanent brain damage. The mother sued Northridge, which cross-sued USC. Mother won settlement awards from both USC physicians and Northridge physicians. This California appellate decision included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers when the patient is seriously dangerous to self.

Meyer (1997) discusses this case with regard to psychologists even though it originally involved psychiatrists. Meyer states, “Referring dangerous patients is a game where it is the responsibility of the pitcher to signal to the catcher just what sort of patient is being thrown the catcher’s way. This aspect of Tarasoff is less a duty to warn than a duty to inform.” (p. 369) In other words, Dr. Allen had a duty to inform Dr. Gross about the patient’s ability to withstand the rigors of an inpatient eating disorders program rather than to remain silent about her suicidality, especially after Dr. Allen himself “forbade” her to enter the program due to her suicidality.

Use caution here when exchanging information about a suicidal patient without release of information from the patient.

Bellah v. Greenson, 81 Cal.App.3d 614 (1978)
“Tarasoff does not extend to suicide… or does it?”

In Bellah, a California psychiatrist concluded that his young adult patient, who was a serious drug addict, was suicidal, but he chose not to inform her parents (for reasons that are not discussed in the case). The patient eventually overdosed, and the parents sued with the goal of extending Tarasoff, or duty to warn of her dangerousness, to suicide.

It appeared that all three requirements of Tarasoff were met:

1. Communicated Directly by Patient to Therapist

The threat had been continuously communicated directly to the psychiatrist by the patient. Tammy Bellah told him she was doing drugs on a consistent basis and did not intend to stop

2. Serious Threat of Physical Harm that was Imminent

Consistent drug use throughout the treatment with Dr. Greenson

3. Identifiable Victim – “with a moment’s reflection”

Tammy Bellah, the patient herself

The Bellah court refused to extend Tarasoff to suicide. The court ruled that Tarasoff was meant to protect a third party victim of the psychologist’s patient, not the patient himself. Thus, Tarasoff was not extended to suicide in 1978. Indeed, in a recent search there were no cases - although certainly one may exist - where Tarasoff had been formally extended to include suicide such that it has become case law.

However, Meyer (1997), in his analysis of the Gross v. Allen (1994) case concludes, ”Bellah has fostered a ‘false sense of security’ all these years.” as Meyer feels the Tarasoff court, found an implicit “duty to protect” suicidal patients by intervening to prevent suicide…”All along in the original Tarasoff decision, and that Gross held that Tarasoff does not state… that a therapist may be silent when to speak may save the life of his patient. To the contrary, to the extent that Tarasoff considers the matter, it finds a duty to speak.” (p. 367.)

In other words, in Meyer’s (1997) re-analysis of the Bellah decision, it seems the actual reason Tarasoff was not extended to suicide in the Bellah case is because the statute of limitations had run out to file the case, not because the court decided in its deliberations not to extend the Tarasoff decision to suicide.

What does this mean to psychologists? Meyer writes that Tarasoff was not extended to include suicide in the Bellah case, not because the court believed it should not be, but because the statute of limitations had run out for the case to be considered. If this is indeed true, then, since Bellah will not be retried, we are left with a good deal of uncertainty.

Psychologists have always handled suicidal patients with proper care, yet not the same care as Tarasoff situations. If Meyer’s summation is correct, then suicide may be treated as a Tarasoff situation after all. At present, the safest approach is to consult with one’s insurance carrier’s legal department and the American Psychological Association, then document the consultation.

In sum, Meyer reports that the 1978 Bellah court did not try the case because the statute of limitations had run out, not because they did not wish to extend Tarasoff to suicidal patients. Thus, extending Tarasoff to suicidality has not been formally tried in a court setting, with the exception of Gross v. Allen.

Once again, this is Meyer’s opinion and may or may not be considered case law or standard of care at this time. If one is faced with this dilemma, remember to consult with an expert and document the consultation in the patient’s file.

Question 3

Your patient, Carrie, tells you she is so angry with her boss she wants to “mess around with the brakes on his car.” When you investigate, she tells you she is only “blowing off steam” and she would never do anything like that.
What should you do?

1. Take steps to prevent the threatened danger to the boss
2. Call and warn the boss and notify the police
3. Hospitalize Carrie
4. Contact Carrie’s support system immediately

The best answer here is (a). It is too soon to invoke Tarasoff (the second answer) as it would be more appropriate to take steps first (see above discussion of steps to take). Hospitalization is too radical and is nearly impossible without patient permission at this point; therefore, the third answer (c) is inappropriate. The last answer (d) is a subset of the first answer, making (a) a more inclusive answer.

New Addition to Tarasoff in California – May be Coming to YOUR Town, Too

Ewing v. Goldstein (2004), Cal.App.4^th [No.B163112.Second Dist., Div. Eight. Jul.16, 2004]

Since Tarasoff was originally decided in California, it is worth mentioning that an entirely new twist in duty to warn and protect has been decided in California once again. It may be that other states will soon decide to take up the call, and make changes, updates, or additions to their Tarasoff laws due to this new case law decision that has recently become precedent in California.

The Facts

David Goldstein was a marriage and family therapist who was treating Geno Colello, a former member of the Los Angeles Police Department, between 1997 and 2001, for work-related emotional problems and problems related to a breakup with his girlfriend. After learning of her romantic involvement with another man, Colello became increasingly depressed and despondent. Goldstein met with Colello on June 19, 2001, and spoke with him by telephone June 20^th and 21^st when Colello told him he was not overtly suicidal, but did admit to giving some thought to suicide. Goldstein and Colello discussed hospitalization, and Goldstein sought permission to speak with Victor Colello, Geno’s father.

Geno had dinner with his parents on June 21^st, telling them he was severely depressed over his girlfriend being with another man. He told his parents he had lost the desire to live and he was extremely resentful toward the new boyfriend. He also told his father he could not handle it, and was considering causing harm to the new boyfriend. Victor Colello contacted Goldstein, telling Goldstein his son Geno was dangerous to himself and to the boyfriend. Goldstein told Victor to take Geno to Northridge Hospital, where Goldstein arranged for Geno to receive psychiatric care. Geno Colello was voluntarily admitted on the evening of June 21^st and was treated by Gary Levinson, MD, a staff psychiatrist.

The following day, Levinson planned to release Colello. The father, Victor, contacted Goldstein reporting that Geno was being released by Gary Levinson, MD. Goldstein, who had not yet spoken with Levinson, contacted Levinson to explain to him why Colello should remain in the hospital. Levinson insisted Colello was not suicidal and would be discharged despite Goldstein’s urging Levinson to reevaluate Colello and keep him hospitalized through the weekend.

Levinson discharged Colello on June 22^nd. Goldstein had no further contact with his patient. On June 23^rd, Colello murdered the new boyfriend, Keith Ewing, and then committed suicide. Keith’s parents sued Goldstein for wrongful death based upon professional negligence. It was that argued Goldstein failed to discharge his duty to warn their son or a law enforcement agency of the risk of harm his patient posed to their son’s safety under Tarasoff.

The Trial

Goldstein moved for a summary judgment arguing the Ewing’s’ action was barred (in California) under California Civil Code 43.92a which required the threat of serious physical harm to the potential victim be made directly to the therapist by the patient, not by the patient’s father. Here, Goldstein argued, he was told of the threat to Keith Ewing by Geno Colello’s father, not by Geno himself. Goldstein claimed Geno never revealed Keith’s surname to him. (See three elements of Tarasoff above).

The Ewings opposed the motion for summary judgment, claiming the therapist was aware of the threat of harm Colello posed to their son who was readily identifiable in any case.

The trial court found the Ewings had failed to follow the statutory requirements necessary to defeat Goldstein’s immunity using CC43.92a, claiming the patient himself had not communicated the threat to the therapist. The trial court also found Goldstein did not have enough information to rise to the level of the serious threat of physical violence required to trigger Goldstein’s liability in a Tarasoff case. The trial court granted summary judgment.

The Ewing’s Appeal

The Ewings make two primary points in their appeal:

1. The trial court’s construction of CC43.92 was unduly narrow – without quoting the law here, most would agree it is rather “wordy.” However, since it was codified in 1985, there has never been any question about how to interpret what it means. Communicated directly by patient to therapist is clear, but in this case, the appellate court had made new law (see explanation below)

2. A communication from a patient’s family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of CC43.92.

The trial court construed the statute in its most usual and ordinary meaning - it precluded any liability upon Goldstein because he did not hear the threat from the patient but from the patient’s father about the patient. However, as seen below, the appellate court disagreed.

The Appellate Decision - July 15, 2004

A communication from a family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of section CC43.92.

When the communication of the serious threat of physical violence is received by the therapist from a member of the patient’s immediate family and is shared for the purpose of facilitating and furthering the patient’s treatment, the fact that the family member is not technically a “patient” is not crucial to the statute’s purpose (p.8).

A therapist’s duty to warn a victim arises if the information communicated to the therapist leads the therapist to believe his or her patient poses a serious risk of grave bodily injury to another (p. 10). The intent of the statute is clear. A therapist has a duty to warn if, and only if, the threat, which the therapist has learned - whether from the patient or a family member - actually leads him to believe the patient poses a risk of grave bodily injury to another person.

Conclusion

Many people are concerned about how to interpret “family member” and “immediate family member” with this new ruling. Does this mean any family member? Only immediate family? Family in another state, or only those who live with the patient? What about a family member who might be vindictive or lying? How do we know if it truly is a family member, or is it a fraternity hoax? What about a disclosure from a roommate, lover, friend, cousin, etc, etc, etc? Does the information have to be received via in-person telephone communication? What about snail mail, email, fax, or voicemail? What if the psychologist does not have the information needed to reach the relative who has made contact?

Most psychologists have been dealing with these types of occurrences for many years already, and know what to do when they get an outside contact about a patient. The only difference here is that now, in California, and perhaps soon in other states, receiving outside information adds the element of a mandated Tarasoff report to a potential victim and to the police. Before Ewing v. Goldstein, psychologists used clinical judgment in these areas.

In California, the Ewing v. Goldstein appellate decision is now case law that is precedent. All therapists are to follow this new ruling in California. There will be many new articles and interpretations for years to come about how to deal with this new ruling in handling patient disclosures, and now, family disclosures.

ASSESSMENTS FOR VIOLENCE & SUICIDE

Assessment for Violence, Dangerousness, or Tarasoff

Experts and courts accept that psychologists cannot predict with any certainty who will be dangerous or when (for example see Baerger, 2001; Bednar, R., Bednar, S., Lambert, M., & Waite, D., 1991; Otto, 1992). Indeed, the methods for assessing suicide are far more acceptable in court than are those for homicide. “Nowhere in the research literature is there any documentation that clinicians can predict dangerous behavior beyond the level of chance” (Stromberg et al., 1988, p.522). That being said, the following is a compilation of input from various sources that is relevant to the assessment of homicide and violence:

• History of violence – Single most predictive factor (Simon, 2001)
• Gender – Males are 10 to 1 more than likely than females to be violent (Ibid.)
• Substance Abuse – Increases the likelihood of violence (Stromberg et al., 1988)
• Mental Incapacity – Interferes with judgment (Ibid.)
• Organized Plan (Simon, 2001)
• Feasible Plan (Ibid.)
• Unavailability of support group – The more support, the less likely to act violent (Ibid.)
• Violent environment – Increases the likelihood of violence (Ibid.)

Suicide Statistics

• Ninth leading cause of death in US
• Third leading cause of death of Americans between 15 and 24 years of age
• Twenty percent of psychologists will lose a patient to suicide
• Suicide ranks second in percent of total cost of APA claims paid out

REALITY:

• Chance of suits are between 1-12%
• Depending upon the type of suicide & patient
• I.e., inpatient vs. outpatient
• ~6% proceed to trial
• Mostly involve INPATIENT standard of care
• 80% continue to be won by clinicians
• Steady rise of malpractice actions for OUTPATIENT suicides

TOOL:

• Patterson et al. assessment created 1983
• To identify suicidal from non-suicidal patients
• Semi-structured interview
• Guidelines for clinical action
• 20-25 minutes
• Individual administration
• Juhnke evaluated reliability and validity

American Association of Suicidology
4201 Connecticut Ave. NW
Washington, DC 20008
202-237-2280

Assessment for Suicide (Patterson et al., 1983; Juhnke, 1994)

This is a tried-and-true and well-known suicide assessment called the SAD PERSONS that was originally developed by medical residents in a crisis situation who wanted to identify which patients were at risk for suicide from those who were not. Their method was reviewed once again in 1994 (Juhnke, 1994). Additionally, in April, 2003, William H. Cambell, MD discussed some ideas for a revised SAD PERSONS scale eliminating the scoring system (Cambell, 2003). Juhnke has adapted the original SAD PERSONS for use with children and adolescents (Juhnke, 1996).

The SAD PERSONS Suicide Assessment for Risk Model suggests:

Sex

The research consistently suggested that male patients are more likely to act out dangerously to self and others.

Age

Age vulnerability seems to change from time to time. Now that the Internet is so available, psychologists are able to go online and research the culture and age of the client in question to establish potential.

Depression

Clinical depression increases suicide potential.

Prior History

As with assessment for violence, risk increases when there is a history of attempts.

Ethanol Abuse

Amusingly, in 1983, the authors wanted to make the initials work: thus they plugged in “ethanol” rather than alcohol, which would have made it SAD “PARSONS”! Their research indicates alcohol and drug abuse increases the likelihood of suicide.

Rational Thinking Loss

Potential psychosis: “A voice told me to kill myself”

Support System Loss

Decreased support system indicates increased risk of suicide.

Organized Plan

As with violence assessment, this speaks for itself.

No Significant Other

Originally, this read “No Spouse” which is clearly outdated today.

Sickness

Has the person or a loved one recently been diagnosed with an illness or disease that has made him or her want to end his or her life?

The beauty of the initial SAD PERSONS is it included (and still includes) an assessment scale as follows. The psychologist is to give one point for each positive profile answer. For example, if the patient is a male, give one point for that answer (increased likelihood as explained above); if the patient has no prior history of suicide attempts, give a zero or that answer, and so on. Then use the chart in decision-making, and consult and document as usual.

Question 4

Vignette – Danny

Danny is a 28-year-old man who has just told you his girlfriend has broken up with him. He is not particularly happy at work but continues to get up every morning, catch the bus, get to work, and get to his desk on time.

He tells you he will not be seeing you for a few months because he has decided to take some time off work. It seems he has given many of his possessions away because he “is paring down my possessions” and “I don’t need much anymore.”

You know Danny has been a heavy pot user in the past and in high school swallowed a bottle of Tylenol with a fifth of vodka. When you inquire about his state of mind now, he tells you he is very happy to be getting time off from work and taking a long vacation.

Conduct a SAD PERSONS on Danny and add up the points, what did you get? What would you do?

1. Danny Scored a 2 – no problems… he is going on vacation… he’s fine
2. Danny Scored a 4 – send home but call him later
3. Danny Scored a 6 – consider hospitalization, but if you believe he will return, let him go
4. Danny Scored an 8 – hospitalize him no matter what

NOTE: See Section B – SAD PERSONS for review of answer material below.

The best answer here is (c), because if you add up the points, Danny comes up with six - 1. Male, 2. Depressed, 3. Prior attempt, 4. Drugs, 5. No support system, and 6. No significant other.

Question 5

What would you do to further protect Danny from harm without involuntarily hospitalizing him?

1. Call his family and have them watch him 24 hours a day for awhile
2. Call his insurance company and prepare for a voluntary or involuntary hospitalization
3. Increase frequency of sessions, increase phone contact, send him for medication evaluation, increase his support system
4. Have him make a contract not to harm himself

NOTE: See Section B – Stromberg et al., preventative steps and for review of answer material above.

The best answer is (c) as Stromberg et al. directs taking steps to prevent the threatened danger.

LEARNING OBJECTIVES FOR SECTION C

• To gain knowledge about patient record keeping and administration (i.e., proper intake procedures)
• To learn updates about HIPAA and patient records

PROTECTIVE INTAKE: TELEPHONE OR IN OFFICE

There is no question that the primary concern of all psychologists is patient welfare. Indeed, General Principle A, Beneficence and Nonmaleficence states, “psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons…” General Principle A and APA 3.04 below seek to reinforce this idea:

It is important to do a comprehensive intake (either over the phone or at the first appointment) in order to avoid subsequent problems such as patient abandonment, improper termination, and improperly establishing a duty of care (See Section A for details on Duty of Care).

Elements to consider are:

• Referral source – Could accepting this new patient for therapy create any multiple relationships for you? Is this an appropriate person for you to work with?
• Emergency contact – Be certain to get the name and number of an emergency contact as soon as possible in case of any of the “red flag” issues (suicide, homicide, Tarasoff, child abuse, elder abuse, domestic violence, dependent abuse, etc.)
• Psychiatric history – Much can be gleaned from discovering current medications being taken, past psychiatric hospitalizations, diagnoses, and current history of treatment
• Presenting problem – Why seek treatment now? Why is the patient not returning to a previous therapist if there was one?
• Theoretical orientation – Does it fit the needs of the patient and the presenting problem? Is it a good match for the patient and the diagnosis?
• Legal / Ethical Considerations – Is there any reason it would not be appropriate or a multiple relationship for you to consider treating this person?
• Rural versus large city considerations (for in-depth discussion of rural practice issues see Campbell & Gordon, 2003)
• The issue of rural versus large city practice will be discussed in future continuing education workshops at ContinuingEdCourses.Net
• Level of Expertise – If you are going to begin a new treatment style, new population, or new DSM diagnosis with this patient, are you able to get proper consultation? If not, it is best to refer.

Definition of Terms for Level of Psychologist Practice:

• Competence – one who is sufficient, adequate or capable (Webster’s)
• Specialist – One who specializes in a particular field of study (Webster’s)
• Expert – Having much training or knowledge in a particular field (Webster’s)

As you can see, with each level, you stick your neck out further! The highest level of competence is expert. This means that the person has either done research, written on, read the history of the topic, and/or speaks, lectures or teaches the topic. Thus, most psychologists are specialists in some areas (children, ADHD, depression, etc.), but may not reach the level of expert. The former California Association of Marriage and Family Therapists (CAMFT) attorney Zachary Pelchat cautions, “Keep in mind that by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (p. 25.). All are competent to practice by virtue of being licensed to practice. By using the term specialist, the clinician is implying that he or she has more knowledge and is practicing a “higher standard of care when dealing in their specialty… keep in mind… when by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (Pelchat, 2001, p. 25),

INFORMED CONSENT aka CONSENT FOR TREATMENT

As early as 1914, Supreme Court Justice Cardoza commented, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” (Schloendorff v. Society of New York Hospital, 211 NY.125, 1914).

What actually is informed consent? The patient consents to be in treatment with the psychologist after being informed of office policies, treatment methods, and limits of confidentiality. There are two basic forms of civil liability regarding informed consent, according to Corey, Corey & Callanan (1998).

• Breach of contract – promises made in therapy and not kept. For example, “I can make you lose weight and never gain it back.” This is not possible in a therapy relationship or in any other relationship.
• Information not given – trying to enforce office policies not previously discussed. For example, trying to charge for a late cancellation without informing the client of this policy in advance. Lawsuits have been lost by psychologists for using untested treatment methods without informing the patient of the experimental nature of the new method of treatment.

Berner (1998) agrees with the APA (former 1992 Code 4.02 but not retained in 2002) when she discusses the elements required for informed consent to be viable:

• Voluntariness – Is your patient giving consent voluntarily? Even if it is a couple, and one partner is reluctant, this still constitutes voluntary consent because the person is choosing, of his or her own volition, to attend therapy. This is true for hostile teens as well as those who choose treatment versus jail time (court-referred cases). This may not be true when the court requires treatment as a part of the sentence (“court ordered”). See APA Code 3.10 below for court ordered treatment addressed in the ethical principles.
• Capacity to give consent – Capacity is generally assumed unless there are court documents to prove otherwise. If a person is too upset to properly consent for treatment, the standard of care allows you to hold off in a crisis situation. The general rule suggests getting informed consent formally at the onset (early in the treatment) unless otherwise indicated. If unsure, always seek legal or ethics consultation.
• Information – This element refers to giving the information in a language and at a level that the patient can easily understand. If the person’s first language is other than English, there must be a translator (family member or appropriate other) or it must be given to the patient in the language of origin. In other words, it is up to the psychologist to make certain the consent in truly “informed.”

Finally, as Guithiel said in 1980, “If it isn’t written down, it didn’t happen.” Document in the patient’s chart that informed consent was given, the patient agrees to treatment voluntarily, and has the capacity to consent voluntarily. Most individuals have forms that cover these issues, especially with HIPAA provisions being added recently (more on this later).

Question 1

George comes in for therapy and is clearly under the influence of a substance. Can you have him sign an informed consent form?

1. Yes, you have to get informed consent at the outset of treatment
2. Yes, he is an adult who is capable, voluntary, and speaks my language
3. No, he does not have the current capacity to give informed consent

NOTE: See Section C – Informed Consent AKA Consent for Treatment for review of answer material below.

Of course, (c) is the correct answer. When a person is under the influence, there are several issues, not the least of which is informed consent. It would not be a valid consent, as George did not have the current “capacity” to give a valid consent.

ETHICS CODES THAT APPLY TO INFORMED CONSENT

• This code discusses obtaining informed consent in a language that is reasonably understandable to the person.
• When persons cannot give consent (minors, incapacitated) psychologists seek “assent” or permission for legally authorized others. Welfare of patient is always the primary consideration,
• With court-ordered services, psychologists must inform as fully as possible including the limits of confidentiality.
• Documentation of the above

The limits of confidentiality are:

• Discuss at the “outset” of treatment; however “outset” is not defined
• HIPAA issues must be considered here
• Inform clients of risks to privacy to their records

This principle, in section (b) states the actual limits of confidentiality as:

• Professional consultations
• Danger to self or other
• Other requirements by law in one’s state (e.g., child, elder, dependent abuse)

• This code pertains to confidentiality when the primary therapist is an unlicensed supervisee, when unrecognized and newly developing therapeutic models are being used, and informing “as soon as is feasible” the limits of confidentiality.
• It also reminds the trainee to inform clients/patients that they are in training, and to give the client/patient the name of the licensed supervisor.

PATIENT RECORD-KEEPING GUIDELINES

Stromberg et al. (1988), a group of eight attorneys who were consulted by the APA in the 1980s, said it well: “Detailed records usually help rather than hurt a health care professional in defending against claims…sloppy, sparse records … appear unprofessional, uncaring, haughty or deceptive” (p. 487). The primary purpose in keeping records is continuity of patient care in the event the psychologist must transfer care to another professional. Other purposes include review of the delivery of services, self-monitoring, and documentation of what is working, and ongoing progress. In essence, properly kept records enhance the treatment and protect the psychologist from litigation and spurious ethics and licensing allegations.

Experts suggested what should be in the contents of patient records prior to HIPAA (Canter, Bennett, Jones, & Nagy, 1994; Bennett, Bryant, VandenBos, Greenwood, 1990; APA, 1994). However, the basics remain the same:

• Identifying data – includes elements such as culture, age, address and telephone numbers, relationship status, socioeconomic status, religion
• Type of service – individual therapy, group therapy, couple therapy, family counseling, child therapy; which of the various theoretical orientations are being used at various stages of treatment; possible crisis intervention
• Dates of service
• Significant actions taken – “red flag” issues and how they are handled; danger to self or other, child abuse, elder abuse, dependent abuse, substance abuse, referrals
• Diagnosis – use of current DSM terminology for insurance purposes; if records are to be made public in any way (court proceedings) take special care here, and share with patient first
• Fee and insurance information – always document this in the patient’s chart
• Consent for treatment form – signed by patient, properly dated
• Chart notes – as per HIPAA, clinic or hospital requirements, or private practice clinician’s choice (see “Chart Notes” section below)

How Long Should Patient Records Be Retained?

When your state fails to provide a statute that dictates how long private practice clinicians must retain patient records, American Psychological Association experts suggest psychologists should follow the Specialty Guidelines for the Delivery of Services (1981) (Caudill & Pope, 1995; Stromberg et al., 1988; Bennett, 1990) as follows (despite the fact that they have not been revised recently):

Specialty Guidelines for Delivery of Services:

2.3.4 Each clinical psychological service unit follows an established record retention and disposition policy.

Interpretation:

1. Full records be retained intact for three years after completion of services or last date of contact
2. Full records or summary be maintained for an additional 12 years
3. Records may be disposed of no sooner than 15 years

In other words, in states where there are statutes for clinic, hospital and private practice record-keeping, psychologists are responsible for following such laws. Where no state laws for record keeping exist, psychologists are to follow the Specialty Guidelines for Delivery of Services of 1981, despite their advanced age!

Question 2

What does APA 4.02 have to say about when a psychologist should get informed consent from a patient?

1. At the outset of treatment
2. As soon as possible
3. By the third session

NOTE: See Section C - APA Code 4.02 Ethics Codes applicable to informed consent for review of answer material below.

The best answer is (a), despite the fact that “outset” is not clearly defined as a specific number of sessions in ethics code APA 4.02 section b. The standard of care seems to infer “outset” means within the first few sessions.

Chart Notes

There are many good treatment planners available to aid clinicians in preparing chart notes (see The Adult Psychotherapy Progress Notes Planner by Arthur E. Jongsma, Jr.; Therapist’s Guide to Clinical Intervention by Sharon L. Johnson). All psychotherapy notes are under subpoena and court order. There are no such things as what are sometimes called “shadow notes,” which refer to personal notes the psychologist takes and uses for consultation, counter-transference consultation, and peer supervision groups. Any notes that have to do with a specific patient may be subject to subpoena (Caudill & Pope, 1995; Thompson, 1990; Bennett et al., 1990). In fact, “Many therapists keep shadow notes containing personal speculations…the legal status of such records is largely undetermined” (Thompson, 1990 p. 111). Psychologists must know case law in his or her state, and get consultation from experts on a case-by-case basis.

Stromberg et al. (1988) take a very strong stance in this area. They note that many psychologists are under the false belief that “process” notes are private and the property of the psychologist. This could not be more untrue according to these attorneys (Stromberg et al. (1988). However, in the terminology, “progress” and “process” notes are considered different. HIPAA now refers to “process” notes as “psychotherapy” notes.

Question 3

Psychologists can keep their own personal thoughts about a patient in personal files at home. These are separate from “progress” notes.

1. True
2. False

NOTE: See Section C – Chart Notes for review of answer material below.

Answer to Question (3) is (b). All record information is the property of the patient and there is no such thing as “shadow” records or keeping private records at home.

HIPAA AND PATIENT RECORDS

Once again, there are numerous courses both online and in-person where psychologists can learn who must become HIPAA compliant and how to become HIPAA compliant. The basics will be discussed here in order to integrate HIPAA compliance into the discussion of record-keeping.

The Health Information Portability and Accountability Act (HIPAA) dictates therapists follow new and complicated federal guidelines with regard to confidentiality of patient records for storage, informed consent, employee training, security of records, and certain electronic transactions of patient information. Normally, federal law supersedes state law; however, with regard to HIPAA, psychologists are instructed to follow whichever law protects patient’s privacy more adequately and completely. Psychologists are required to study both federal and state laws that are applicable and to decide which ones supersede the others. Fortunately, many available courses do this work for clinicians within each state.

Electronic transmission refers to computer transmission of information and computer faxes, not telephone lines nor freestanding fax machines.*** If you receive or send patient information via your computer, either by a computer fax or email, you are required, under federal law, to be HIPAA compliant. If you use telephone lines verbally, free standing faxes, or snail mail for transmission of patient information, you are not required to be HIPAA compliant. However, if you use any billing service that does any such transactions via computer lines or computer faxes or any other electronic means, then you are required to make your office HIPAA compliant, even if you personally do not transmit information via the electronic methods included in HIPAA. Additionally, you are required to have a contract with your hired billing agent guaranteeing he or she is, indeed, following HIPAA guidelines on your behalf.

HIPAA’s purpose is to “cut back” on paperwork by using primarily computer storage and computer transactions. Some experts say all psychologists will eventually have to be HIPAA compliant whether or not they make electronic transactions. For example, I am told this is the case in New York. Be certain to check the current HIPAA requirements in your state. Stay tuned!

Question 4

HIPAA refers to a group of federal laws that supersede state laws except when:

1. State laws are less protective of patient’s confidentiality
2. State laws never supersede federal laws
3. State laws are more protective of patient’s confidentiality

NOTE: See Section C - HIPAA for review of answer material below.

As mentioned earlier, HIPAA includes federal laws that nearly always supersede state laws. The exception is when state law gives more protection to the patient’s confidentiality rights. Thus, answer (c) is the best answer here.

PATIENT ACCESS TO RECORDS AND RECORD RETENTION

See if your state laws and HIPAA federal laws agree on patients having access to their own health records. Once a psychologist has been given written notice, and

• the therapist has reasonably discussed the purpose of the patient’s request to view records or to have a copy of his or her records, and
• the psychologist believes, if the request is fulfilled, there will be no harm or detriment to the patient,

according to HIPAA, the following must be done:

According to Bennett (1990) the psychologist “owns” the actual file (as he or she has created it and stored it), but the information in the file is the property of the patient. Thus, the patient may view or have a copy or summary of his or her records at the time of his or her choosing. Many states allow for the possibility of denial of access to the records if the psychologist can document good reasons why it would be destructive or detrimental to the patient to view or have a copy of records. It is mandatory for psychologists to become familiar with their state’s laws regulating patient access to records, and how they correspond to the new HIPAA legislation.

A summary of records is an option that is often suggested by the psychologist versus copying the entire file and handing it over. This may or may not be acceptable in court proceedings, depending upon the judge’s pleasure. The elements of a summary of records are enumerated by Canter et al. (1994):

• Chief complaint & history of complaint
• Consultations received
• Referrals made during the course of treatment (e.g., medication, anger management, couple counseling)
• Diagnoses being treated
• Treatment plan
• Medications and evaluations for medications
• Progress made in treatment
• Psychological assessment results
• Termination notes if applicable

APA ETHICS CODES THAT APPLY TO RECORD-KEEPING

(Please see codes within APA 6 that apply as we go along)

The idea here is to:

• Facilitate provision of services later, if needed for the client by other professionals
• To allow for replication of research
• To aid in accuracy of billing
• To ensure compliance with law

• This is related to storage of records in databases using coding systems.

• It is unethical to withhold records because of nonpayment of fees, when the records are required for emergency or crisis work.

• Records, insurance information, and billing are done accurately and appropriately. The idea here is to avoid billing for a false diagnosis (Axis I - 300.4 Dysthymic Disorder) that is commonly and universally paid for by the insurance company rather than what is actually being treated (V61.1 Partner Relational Problem). Some diagnoses may not be covered by insurance, such as V-codes, because a V-code is “a condition that can be treated, but not a mental disorder.” Giving a patient a false diagnosis is insurance fraud and a severe license and ethics violation.

NOTE: See Section C – HIPAA & patient records for review of answer material below:

Question 5

Which laws should a psychologist obey when federal HIPAA laws and state laws do not agree?

1. The laws that more fully protect patient confidentiality
2. Always follow federal laws

Question 6

How long should private practice records be kept in states where no current law exists for patient record retention?

1. Five years
2. Seven years
3. Ten years
4. Fifteen years

Answer to Question 5 is (a). When Federal/HIPAA laws and state laws conflict or do not agree, the psychologist is to follow whichever laws serve to more carefully protect the patient’s confidentiality. Always consult when in doubt.

Answer to Question 6 is (d). Don’t forget that when there are no state laws that dictate how long private practice patient records must be kept, the APA Specialty Guidelines for Delivery of Service (1981) lend some guidelines psychologists are advised to follow (15 total years).

LEARNING OBJECTIVES FOR SECTION D

• To gain knowledge about billing practices
• To prevent insurance fraud
• To learn how to get a professional consultation

FEES AND FINANCIAL ARRANGEMENTS

Finances are difficult for most clinicians who would much rather be doing clinical work, consultations, psychological assessments, teaching, academic pursuits, training interns, and myriad other tasks, than discussing how much they are going to charge per hour for their services, especially per session hour for clinical patients. Often the collection of fees takes a back seat to clinical considerations. Most clinicians rely upon practice income to pay current living expenses, thus regular collection of fees is mandatory.

Stromberg et al. (1988) suggest several basic principles to maximize effective billing and collection whether or not the client is utilizing an HMO or PPO insurance:

• Inform the client, family, group patients, or couple at the outset of therapy what the fees are and when they will be paid
• Wherever possible, require payment at the time of each session
• Maintain careful accounting records so money does not “slip through the cracks”
• Provide monthly statements to patients in a timely manner – do not let unpaid fees build up
• Issue appropriate reminders regarding unpaid bills
• Openly discuss with patients possible resolution of payment problems prior to accounts becoming overdue

During a first evaluation, financial considerations should be discussed openly, and a permanent fee should be set. Many psychologists customarily raise their fee annually along with either the cost of living, or the cost of the increase in their rent. Whichever is the case, this must be discussed in advance so the patient can consider this in entering long-term treatment. Most clinicians include these issues on the informed consent form or at the intake at the outset of treatment.

Unconscious Fiscal Convenience

Welfel (2002) discusses the term “unconscious fiscal convenience,” introduced by Cummings in 1995, meaning the overlooking of important therapeutic dimensions of the sessions because they would conflict with the psychologist’s financial self-interest. Welfel asserts such clinicians are not malicious but they do fail to see their own unconscious underlying financial motives. (Unconscious by definition, of course, means out of awareness.) For example, it may be tempting to keep a full-fee client in treatment due to the therapist’s financial considerations, when, in actuality, the client should be preparing to begin the termination process.

To avoid such practices, psychologists should pursue continued peer consultation along with continued outside professional consultation using decision-making methods designed especially for when one’s financial well-being is at issue.

Special Financial Problems Inherent to Private Practice

A risk in private practice is the conflict of interest inherent in the need to collect the highest fees possible along with the ethical dictate to provide pro bono and sliding fee services (see below for relevant APA codes). Psychologists have all the same financial pressures as individuals in other professions, often without the security of a company-paid retirement plan. Indeed, most private practice clinicians pay for their own medical, dental, and disability insurance along with retirement planning and long-term disability insurance, as many other self-employed individuals do. Thus, the temptation to maintain a full-fee patient must not influence the decision to conduct a proper and timely termination when appropriate. In addition, the temptation to diagnose a patient with a “parity” diagnosis in order to receive unlimited access to insurance-paid sessions can be overwhelming when the psychologist is suffering from money concerns (see “Insurance Fraud” Section for a discussion of “parity”).

ETHICS CODES THAT APPLY TO FINANCIAL ARRANGEMENTS

• The suggestion here is to contribute a portion of time for work that returns little or no remuneration or financial compensation.

• This code states records may not be withheld due to nonpayment if they are needed for emergency treatment.

• Discuss fee structure as early as is feasible
• Discuss fees honestly
• Discuss limits in services at the start (e.g., HMO refusals)
• If collection services are used, the patient is informed first and given a fair opportunity to make arrangements for payment of the overdue bill

• Accurately report information to any and all funding sources. In other words, report the diagnosis properly.

• Psychologists may pay referral services for referrals, but cannot pay a service or person for each patient referral. For example, one can pay an annual fee to be part of a referral service. One cannot pay the referral service for each patient it refers.

INSURANCE FRAUD

Never falsify! If something did not make it into the chart, you may chart it at any time. Simply chart the new material with the correct date that it is being charted using the notation that the event actually occurred on another previous date. For example, “In reviewing the file on February 10, 2001, the following was not mentioned in the progress note for the session of November 11, 2000 and will be noted at this time.” Never “fudge” the date or try to force something into the file at a place or on a previous date where the note does not belong. It makes the entire record suspect and will incur doubt as to the credibility of the entire record.

Below are some actions that are considered insurance fraud:

• Giving an “insurance diagnosis” - This means giving a diagnosis that you know the insurance company will reimburse rather than the correct diagnosis you are actually treating (e.g., some insurance companies will not pay for Axis II personality disorders, or V-codes, e.g., parent-child issue). Insurers reason that Personality Disorders are not likely to change a great deal, despite what the psychologist and the literature reports (“the insurance company thinks they know better…”) and since V-codes are “conditions,” not mental disorders, they are not always reimbursable.
• Changing the start date of treatment - Sometimes a patient, with the best of intentions, will ask you to change the start date of treatment to coincide with when his or her insurance coverage begins. For example, if the patient begins treatment with you on September 1 but her insurance coverage at her new job does not begin until October 15, the client may ask you to “pretend” that you began the treatment after her insurance became effective in order to eliminate any preexisting conditions.
• “Preexisting conditions” refers to any medical or mental health diagnosis that was being treated prior to the insured person’s new carrier covering them
• Missed sessions - Insurance will not pay for unattended sessions. It must be indicated on the billing form that certain sessions have been unattended in order to be billing ethically and legally. Indeed, if you are billing parents for a teen’s therapy, sending bills to a business manager, or any third party, clear this up in advance with regard to the confidentiality of the patient, especially with an adolescent or teen so the minor does not perceive billing statements to parents that indicate missed sessions as a breach of confidentiality.
• Billing at an accurate fee - Psychologists may not bill at any other fee than that being charged to the patient. It is unethical and illegal to try to collect the entire fee through charging a higher rate to the insurance company such that the insurance pays the entire fee, or a greater portion of the fee, while the patient pays little or nothing without clearing this with the insurance company in advance. The insurance company will pay their co-payment dependent upon your bill or their contract with the patient, or his/her employer; thus your bill must be accurate. Some well-meaning psychologists will try to bill at a higher rate to collect the entire CO-payment from the insurance company so the patient does not have to pay any fee. This is insurance fraud.

Parity Diagnoses

According to Otten (1998), insurance parity coverage for mental illness demands the same benefits and the same limits for mental illness as for other types of illnesses and diseases. Federal legislation was implemented on January 1, 1998 mandating a limited parity in employee health benefit plans covering mental illness.

Many states had already established parity prior to federal enaction in 1996. The National Alliance for the Mentally Ill (NAMI) convened a meeting of experts who had firsthand knowledge of the effects of parity in June of 1996. “Participants included officials of states that required parity laws for treating mental illness in employee health plans, executives of self-insured corporations that offer some sort of parity to their own employees and of firms that manage behavioral health care coverage, federal officials and researchers who were assessing evidence from states and employers for its relevance in implementing the new federal parity legislation, researchers and advocates” (Otten, 1998, p. 3).

Each state has made its own statutes regarding the Mental Health Parity Act and their version of compliance and conformity with this act. Most psychologists can easily become familiar with the diagnoses that are included within the parity diagnoses that are exempt from limitations by managed care and/or insurance company dictates with regard to number of sessions or amount of treatment.

For example, in 2000, California enacted Assembly Bill 88 where nine specific diagnoses were included in the exempt category referred to as “severe mental illnesses” (SMI) and “serious emotional disturbance” (SED) that are to be treated with the same status as severe physical illnesses in that state as far as unlimited treatment is concerned. These diagnoses stem from the DSM-IV-TR:

• Schizophrenia
• Schizoaffective Disorder
• Bipolar Disorder
• Major Depressive Disorder
• Obsessive Compulsive Disorder
• Panic Disorder
• Eating Disorders
• Serious Emotional Disorders in Children and Adolescents
• Pervasive Developmental Disorder

It is the requirement of psychologist to know the parity diagnoses in his or her state in order to understand the insurance billing practices of the state in which he or she practices. Proper billing and explanations to clinical patients is an ethical mandate.

PROFESSIONAL CONSULTATION

The six most important words in psychology are:

• Consult
• Consult
• Consult
• Document
• Document
• Document

All kidding aside, the reality is that in legal proceedings and licensing violation proceedings, the defending psychologist is often asked if he or she got a consultation when faced with a difficult or complex situation or personal problem. Consultation is the standard of care that is used to reduce counter-transference, burnout, and to support a treatment plan with dangerous patients.

In the case of Roberts-Henry v. Richter (1989) in which Dr. Richter, a Colorado psychiatrist had sexual relations with his patient ten days after terminating therapy for the specific purpose of having a sexual affair (both parties were married and the patient had sought therapy due to guilt over having had a post-marital affair), several precedents were set. At the time in Colorado, it was not illegal to have sex with a patient ten days post termination, or to terminate solely for the purpose to have a sexual relationship. During the trial, the attorney for the plaintiff, who knew that Richter had personal problems at the time of the sexual affair with Roberts-Henry, asked the psychiatrist, “Did you return to personal therapy at the time? Did you seek consultation with another professional in Colorado? How many psychiatrists do you know in Colorado? Why didn’t you seek consultation with another psychiatrist before having sex with a patient?” Even here, it became an important part of the case against the defendant that he failed to seek consultation. The 3-man, 3-woman jury found Roberts-Henry 18% responsible for her own damages, and Richter 82% responsible for her damages of Post-Traumatic Stress Disorder. Several precedents were set in this case:

1. The Plaintiff addressed the Colorado legislature, drafting a bill to limit the ability of the defendant’s attorney’s ability to investigate the plaintiff’s sexual history

2. The Plaintiff addressed the Colorado legislature, drafting a bill to make sex with a patient illegal after which six other states (1989) followed suit. NOTE: Each psychologist is mandated to know the state laws regarding sex with current and former patients.

Why and when to seek consultation? (Clayton & Bongar, 1994)

• To document that the psychologist was practicing the standard of care by seeking consultation
• To get ongoing one-on-one continuing education
• To obtain a second opinion
• To deal with counter-transference or burnout issues
• To avoid impaired judgment
• For any “red flag” issues
• Danger to self or other
• Abuse issues
• Uncertainty about diagnosis
• When treating special populations
• Cultural issues
• AIDS/HIV
• Any legal or ethical consideration
• Lack of momentum or improvement in the treatment
• When using new techniques with no established standard of care

This code directs psychologists to get informed consent when using techniques that are still in development and have not been fully established

When do we need patient permission for consultation?

This code allows psychologists to get “professional consultation” without the consent of the individual if the demographics of the person are disguised carefully.

Psychologists maintain confidentiality when consulting with other professionals.

Who are good choices for professional consultants?

Consultants should be senior therapists or experts in their field such as attorneys, pharmacists, medical doctors, substance abuse experts, ethics committees, and experts in specific cultural issues or ethnic groups.

Unfortunately, many psychologists fail to seek consultation due to a lack of finances and/or professional arrogance. In the case of Dr. Richter, it appears he did not wish to be told not to have a sexual affair with his “former” patient (see previous discussion under “Consultation”). Studies indicate that many psychologists fail to utilize consultation. Lack of consultation can be detrimental to their patients (Clayton & Bongar, 1994). In Kapp (1987), experts note that, failure to consult when appropriate may lead to a legal finding of negligence in malpractice cases. In fact, Applebaum and Gutheil (1991) found “consultation together with documentation to be the ‘twin pillars of liability prevention’” (p. 201).

Question 1

When must a psychologist seek consultation?

1. To learn how to earn more money
2. When there is a lack of momentum in the treatment with a patient
3. When the therapist wants to meet new professionals to network

NOTE: See Section D – Professional Consultation for review of answer material below:

Of course, the answer is (b). There are a number of reasons in Section D to seek formal consultation but with answer (b), the psychologist MUST seek consultation.

Question 2

Dr. Jones does not want her new patient to stop bringing her 7-year-old son in for psychotherapy because Dr. Jones honestly thinks she can help the mom and the child to get along better with a course of therapy. Dr. Jones definitely wants to help them improve their lives. Mom complains she is running out of money and cannot continue treatment unless the insurance company will cover the treatment. For this reason, Dr. Jones is worried that the insurance company might not pay for the V-code diagnosis (Parent-Child Problem) that is the actual diagnosis she is treating, as often insurance companies refuse to treat V-codes. She has decided to single out the mom, and bill the mom’s insurance company as if the mom is coming in for Generalized Anxiety Disorder on Axis I without the son. This is an example of:

1. Insurance fraud
2. What a psychologist needs to do in the helping professions
3. The only way a psychologist can get paid in 2004
4. Ethical because they would have to drop out of therapy if the psychologist billed it any other way

NOTE: See Section D – Insurance Fraud for review of answer material below.

Of course, the answer here is (a) because any type of collusion to receive insurance payment or any form of lying to an insurance company in order to get reimbursement for the psychologist or the patient is insurance fraud, despite the fact that Dr. Jones’ intent is to help her patient and her patient’s son to get services. It would be safer for the psychologist, and better modeling for the patient, to simply lower the fee to a rate the patient can afford, or refer if possible to a lower fee provider or clinic, rather than to defraud the insurance company, which puts everyone, especially the psychologist and her license, at risk.

Question 3

Sometimes a psychologist will be unaware of his or her need to overlook a number of important therapeutic dimensions of the sessions because they would conflict with the psychologist’s financial self-interest. Experts have termed this phenomenon:

1. Counter-transference
2. Burnout
3. Unconscious fiscal convenience

NOTE: See Section D – Fees & Financial Arrangements for review of answer material below.

The answer is (c). Unconscious fiscal convenience is insidious especially because it is, by definition, out of the psychologist’s awareness. It is easy to get caught up in one’s own financial issues while overlooking what is best for the patient through the use of rationalization or intellectualization or repression. The above section discussed methods suggested to prevent unconscious fiscal convenience.

LEARNING OBJECTIVES FOR SECTION E

• To gain awareness of counter-transference and burnout
• To avoid negative counter-transference reactions
• To avoid multiple relationships

DEFINITION OF COUNTER-TRANSFERENCE

Kernberg (1965) defined counter-transference (CT) as “the analyst’s conscious and unconscious reactions to the patient in the treatment situation which are reactions to the patient’s reality as well as to his transference; and also to the analyst’s own reality needs as well as to his neurotic needs” (p. 38). Heimann (1950) was one of the first to offer several revisions of the CT concept. She expanded the term CT to include all of the feelings the therapist has toward his or her patient. Fundamentally, CT is considered important because it can influence the therapy in a number of negative ways; among these are premature termination, inappropriate therapist reactions, lack of therapist insight, and failure to properly treat the patient (Harmell, 1987). Thus, it is important for all therapists to make efforts to remain aware of their CT reactions to patients in order to reduce harmful attitudes and/or behaviors related to patients (Harmell, 1987).

Additionally, CT is a wonderful tool by which psychologists can gain insight into nonverbal messages from patients, become aware of their own visceral experiences related to patients, and use it as a useful tool for valuable feedback regarding the patient. Early on in the history of psychotherapy, many powerful influences helped to reduce therapist avoidance of their CT reactions by reframing the concept positively (Heimann, 1950; Grossman, 1965; Epstein & Feiner, 1979; Racker, 1953, 1968; Langs, 1982).

Harmell (1987) studied the relationship between CT and three variables (1) Level of Therapist Experience, (2) Theoretical Orientation, and (3) Therapist Self-Awareness, both independently and as a predictive unit. It was found through the use of CT subscales that CT is best examined as clusters of specific attitudes and behaviors rather than a one-dimensional global concept. Clearly, CT is a complex topic to study and evaluate.

Psychologists are constantly confronted with boundary challenges. Steinman et al. (1998) enumerated several common areas of concern with regard to CT:

• Asking personal questions - Many psychologists find it withholding and difficult not to answer personal questions when a client asks. Most psychologists will only answer questions that are public knowledge (e.g., teaching affiliations, associations) and questions that the psychologist, after due consideration or consultation, believes to be, if answered, therapeutic to the client. Most licensing boards of psychology instruct psychologists to inform clients of any information related to the status of the license.
• Flirting - Asking the psychologist to meet outside the office, at a restaurant, or hotel is a dangerous precedent to start, and a difficult procedure to stop. It is generally not appropriate to meet outside of the office for most reasons short of an emergency or when using specific methods that require out-of-office procedures (in vivo).
• Asking Favors - It is difficult to turn down a patient’s request to reduce a fee, loan a book, or tell personal details of one’s life. However, gratifying this favor is not the purpose of therapy and is often the beginning of the “slippery slope” that leads to poor decision-making with regard to ethics.
• The new patient talking negatively about past therapist - This is a very seductive attempt to flatter you and compare you favorably to the former therapist. It is certainly enjoyable to hear one is a “better” therapist and one “is doing a better job” than the last therapist, but it is mandatory to analyze the reason for such disclosures.
• Asking for advice - “What would you do if you were me?” This is such a common question! As psychologists, we do not answer such questions directly in most cases. This is not helpful to a client, and is not why the client is attending sessions. The real ethical problem here is the client could take the “advice” only to find it wrong, ineffective, or even harmful.

Psychologists must remain vigilant to CT reactions in order to avoid forcing opinions, feelings, or inappropriate feelings upon the client. The primary methods of handling CT and burnout consist of:

• Taking time off to replenish and refresh
• Taking vacations for time away from the office and patients
• Peer and senior consultation to stay on track
• Literature review for updates and most current methods
• Personal therapy
• Hobbies and personal time

NOTE: See Section E – Definition of Counter-transference for review of answer material below.

Question 1

Who was the first person to expand the concept of counter-transference?

1. Freud
2. Heimann
3. Langs

The answer is (b). Heimann was the first to expand the definition of CT to include all of the feelings, positive and negative, of the psychologist.

Question 2

Identify two routine boundary challenges most psychologists confront in a therapeutic relationship:

1. Patient asking therapist a personal question. Patient asking for advice.
2. Sleeping with patient. Loaning money to patient.
3. Patient borrowing money from therapist. Patient loaning therapist money

The answer here is (a). Most psychologists do not even consider (b) or (c), but do deal often with (a).

Burnout and the “Troubled” or “Incompetent” Therapist

42 U.S.C. § 12102 (ADA)

Use of the term “impaired” is protected by federal law and can only be used in context with individuals who qualify under the Americans with Disabilities Act. Thus, in research prior to the Americans with Disabilities Act, with respect to the “impaired” therapist or intern, the terminology will be referred to hereafter as the troubled or incompetent therapist despite the fact that the authors below used the term “impaired” which was not yet protected by the ADA at the time of printing.

In further explanation, Falender and Shafranske (2004), who have used the term “incompetent” in place of “impaired” explain that the person who continues to use the old term “impaired” faces the legal risk associated with using a federally-protected term. There may be penalties and prohibitions, which remain unclear as of now, that are associated with such improper use. Falender (personal communication, November 2, 2004) explains that those who use the term inappropriately with interns, employees, and others are subject to making accommodations for such people with actual disabilities. In addition, it is inappropriate to “label” an employee, fellow psychologist, or intern “impaired” (which equals “disabled”), as it is only the individual who has the right to give such information about being disabled to the employer or supervisor of his or her free will, under federal law.

Falender and Shafranske say it is no longer an option to use the term “impaired” freely as a general term (e.g., the impaired psychologist) to refer to psychologists who may be functioning below the expected level of performance; this can create legal jeopardy.

Many factors - such as substance abuse, illness, CT, and burnout - can negatively influence psychologists’ ability to remain effective personally and professionally. Stadler (1990) refers to the troubled therapist as a person who has lost the ability to resolve his or her own stressful events. He or she may have lost the ability to deal with personal inner conflicts activated by client material and even to help stabilize and facilitate patient growth. When the goal switches from stabilizing the client to stabilizing the therapist, burnout can strongly be suspected. Emerson and Markos (1996) suggest that sexual exploitation is a strong manifestation of therapist problems that have spun out of control.

Sexual involvement with a client is the most extreme form of incompetent behavior for a psychologist. This type of behavior is a clear manifestation of losing the therapeutic path, burnout, and patient abuse. According to the literature, psychologists who become sexually involved with their clients share certain characteristics that reflect the troubled therapist (Emerson & Markos, 1996; Pope & Vasquez, 1998; Pope, 1994):

• Fragile self-esteem
• Difficulty establishing intimacy in his or her own personal life
• Practicing in isolation
• Needing to rescue clients
• Needing to be reassured about one’s own attractiveness
• Possible substance abuse
• Wanting to be liked

Benningfield (1994) identifies several other characteristics, other than those related to sexual involvement, that have been associated with burnout and the troubled therapist:

• Lack of empathy
• Extreme loneliness
• Poor social skills
• Social isolation
• Paying little attention to, and denying the possibility of, harm to others
• Complete preoccupation with one’s own needs
• Denial of professional responsibility for one’s actions with patients

APA ETHICS CODES THAT APPLY TO COUNTER-TRANSFERENCE

Because CT and burnout are such critical topics, the APA Ethical Principles of Psychologists and Code of Conduct address these two topics in several areas.

This code reminds psychologists to practice within their area of competence of training, education, experience, and consultation. Burnout is more likely when psychologists work beyond their competence and “freelance” rather than use tried and true methods. Freelancing is a term that refers to the failure to research the best and most effective methods of clinical practice for a particular diagnosis in favor of simply trial and error without a formal or thoughtful treatment plan that is relevant to the diagnosis and particular patient. A treatment plan must be explainable to anyone in authority who might have a need to know, such as an insurance company, a licensing board, an ethics committee, or the patient himself. The treatment plan must also relate to what the literature suggests is effective in helping the patient improve and decrease symptoms, based upon how it has worked with prior patients in the literature.

Awareness of personal problems is mandatory. This code instructs psychologists to avoid harming clients when they know or should know that the psychologist’s personal problems might harm their patients. As always, the psychologist should consider seeking his or her own personal therapy, time off, vacation time, relaxation techniques, and hobbies to help with burnout, counter-transference, and personal problems that could interfere with the patient-therapist relationship.

Psychologists are told here to terminate patients properly rather than risk harming them in any way (for example, due to the therapist’s CT or personal problems).

NOTE: See Section E – Burnout & the Troubled Therapist for review of answer material below.

Question 3

The term “impaired” with regard to psychologists is now protected by federal law for what reason?

1. The term is too broad to be descriptive
2. The term is not descriptive enough for psychotherapy
3. The term is protected by federal law for Americans with Disabilities

The answer is (c) – the term “impaired” is protected by federal law for Americans with disabilities.

LEARNING OBJECTIVES FOR SECTION F

• To explain why multiple relationships are damaging to patients
• To learn methods of avoiding multiple relationships
• To learn how to apply the new APA Ethical Principles of Psychologists and Code of Conduct to multiple relationships
• To avoid patient abandonment and learn proper termination procedures

MULTIPLE RELATIONSHIPS

No psychologist is immune to the possibility of engaging in an inappropriate relationship with a client (Olarte, 1997). Sexual misconduct is considered one of the most serious ethical violations and is a very common allegation in malpractice suits. “Therapist-client sexual contact is arguably the most disruptive and potentially damaging boundary violation” (Corey, Corey, & Callanan, 1998). Experts agree that when sexual activity begins, therapy as a helping process ends (Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1993). Some psychologists maintain “Once a patient, always a patient.” However, the APA ethics committee and task force declined to make a blanket prohibition against sexual intimacies regardless of the time that has passed since a normal termination. The controversy exists primarily between rural and large city psychologists in this area.

It is important that each psychologist become familiar with the state statutes that cover violations of this well-known prohibition against patient-therapist sexual relationships. The Ethics Codes are the same for all psychologists.

Many states proclaim a blanket prohibit against sexual activity between therapist and patient in any of the three situations that follow:

(a) While in therapy. In other words, sexual contact with a current patient is out of the question and strictly prohibited under any and all circumstances.

(b) Within two years of a normal termination. This requires that the termination be “normal” in that therapy is not terminated for the purpose of starting a social or sexual relationship. Once again, please refer to the Roberts-Henry v. Richter (1989) case for further discussion in Section D – Professional Consultation.

(c) By means of “therapeutic deception.” By therapeutic deception, the legislature means the use of coercion to coax a client into inappropriate sexual behavior (e.g., “I can only help you if you let me massage you.” “I can only help you if you take off your clothing”.).

• Some states have made sex with a patient a criminal act with criminal sanction against the psychologist.
• Some states have used the “two year” timeframe to define “former” patient.
• “Normal” termination means termination not constructed with the sole purpose of later being able to circumvent the ethics code and/or the state statute in order to begin a sexual or social relationship.
• The Ethics Code takes into consideration the difference between rural and large cities.

APA ETHICS CODES THAT APPLY TO MULTIPLE RELATIONSHIPS

This code specifically prohibits having a professional role simultaneously with:

(a) Another role with the same person, or

(b) Another person closely associated with or related to the person with whom the psychologist has the professional relationship, or

(c) Promising to enter into another relationship in the future with the person or a person closely associated with or related to the person

Basically, the consideration here is - Could the multiple relationships reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness?

It is interesting to note that the only way that a new item makes it way into the Ethics Code is if there is an occurrence or ethical issue that may not be completely covered by the current codes. In that eventuality, a new code may need to be established or an old code may need revision.

This is the first time the code has formally noted that not all multiple relationships are unethical if they do not risk exploitation or harm.

Fisher (2003, p. 71) gives several examples of possible conflicts of interest a psychologist could find him or herself having to deal with:

• Having financial holding in an existing company whose product the psychologist has been asked to endorse
• Failing to recuse oneself from voting on a faculty position on which a family member is an applicant
• Failing to disclose on an informed consent form and in a subsequent research publication that the research was funded by the company whose drug-related side effects the research was designed to evaluate
• Irrespective of a patient’s treatment needs, taking a “kickback” by winding up treatment after only 10 sessions of “short term” treatment

A sexual intimacy with current therapy clients/patients is never appropriate under any circumstances.

One way to think of this code is “The Prince of Tides” Code. In other words, don’t have sex with your patient’s brother in your patient’s bed while you have placed your suicidal patient in the hospital after telling your narcissistic violinist husband all about your writer-patient and allowed your teenage son to play football in Central Park with your new lover who also happens to be your patient’s brother.

It is unethical to provide therapy to a person with whom the psychologist has previously been sexually intimate.

APA adheres to the “almost never” rule here: Almost never have a sexual relationship with a former patient. Once again, it is the responsibility of each psychologist to research the existing laws about sexual activity with a former patient and how it interacts with the ethical standards discussed here.

Note the two words, INCLUDING and AND in APA 10.08:

1. INCLUDING: The task force working on this issue debated about this word, finally deciding to use the current word as we see it now. This means that all seven elements must be considered along with any other considerations that should be reasonably be INCLUDED given the particular case that the psychologist is considering.

2. AND: The task force working on this issue in 1992 and 2002 debated whether this word should be AND or should be “OR.” “OR” would indicate that the psychologist considering having a sexual relationship with a former patient after the two-year hiatus would only have to consider some of the seven considerations in (b) of APA 10.08 (i.e. 1 or 2 or 3 etc, versus 1 and 2 and 3 and 4 etc.).

However, if, under the most unusual circumstances, a psychologist does engage in such activity after the two-year prohibition, at least the following seven elements must be considered among everything else that is pertinent:

(1) The amount of time that has passed since therapy terminated

26 months versus 26 years since termination of treatment

(2) The nature, duration, and intensity of the therapy

Was the psychologist the intake worker versus conducting an 8-year analysis with the patient?

3) The circumstances of termination

Was a proper termination conducted versus an angry, litigious, and threatening client?

(4) The client’s personal history

Normal history versus involuntary hospitalizations

(5) The client’s current mental status

Stable person versus borderline personality disorder

(6) Likelihood of adverse impact on client

How stable is the former patient? Would this break up a family?

(7) Any statements or actions made by therapist inviting the possibility of a post termination sexual or romantic relationship with client

For example, in the course of the client relationship, was there any suggestion that, if the client was not a client, a relationship might be possible?

Patient Abandonment

When is a “duty of care” established? In Section A, duty of care was defined as an established relationship between the client/patient and the psychologist (If you wish a review of APA codes 3.10 and 1.10, Informed Consent, see below.)

Since a new or naïve client who has never sought psychotherapy may not understand when the duty of care begins, it is mandatory to discuss this thoroughly with the person at the outset of treatment (Van Susteren, 2001). Van Susteren (2001) reviewed a number of interesting legal cases in which the psychotherapist was charged in court with patient abandonment. Two in particular stand out:

Brandt v Grubin (1974) – New Jersey

A psychiatrist was called in as a consultant only to do a one-time evaluation of his opinion for future treatment and current medication management. He recommended long-term psychotherapy and medication with a psychiatrist other than himself. The patient promptly committed suicide. The patient’s family just as promptly sued the psychiatrist for patient abandonment in a malpractice suit. The Appellate Court found that the psychiatrist “completed his task of the patient evaluation and recommendation and had no obligation to expand or deepen his involvement.”

Osheroff v Chestnut Lodge (1985) – Maryland

Dr. Osheroff, a physician, underwent months of ineffective psychodynamic treatment at Chestnut Lodge for major depression. He was eventually given antidepressant medication, which helped him improve rapidly. He quickly resumed his normal life, and he just as quickly found an attorney and sued Chestnut Lodge and the treating staff for patient abandonment and malpractice. Chestnut Lodge offered a settlement out of court, which was accepted by Dr. Osheroff.

In this Osheroff case, there was a duty to terminate when the treatment failed to help improve the patient. “Continuing to treat a patient long after it is clear the chosen treatment is not working can be seen as the flip side to abandonment. A psychiatrist does have a legal (and ethical) duty not to continue ineffective treatment…the court has described the duty to terminate ineffective or dangerous treatment.” (Van Susteren, 2001, p. 12).

APA 10.10 explains that psychologists must terminated when therapists recognize that the patient no longer needs the service, or is no longer benefiting, or is even being harmed by the treatment. This requires the psychologist to review his or her notes, to remain aware of the progress of treatment, and to stay abreast of new methods being used to treat the patient’s condition.

Claims of patient abandonment sometimes arise if psychologists do not provide appropriate coverage during off times such as weekends, nights, and vacations. Psychologists must be reasonably accessible to patients whom they know are prone to “emergencies” (Tarasoff, danger to self or other) via pager or checking one’s phone message system (voicemail or answering service) (Welfel, 2002).

Returning Pages and Telephone Calls

It is not mandatory to use a pager or beeper system; it is necessary to check in with one’s answering service or one’s answering machine regularly if a pager is not in use. This standard of care is not written anywhere, nor is it mentioned in any articles readily found upon a search. Thus, psychologists should use their judgment based upon the patient’s diagnosis and personality. For example, if a patient is borderline, then constant telephone calls or pages would be handled differently than telephone calls or pages from a patient with major depression or bipolar disorder. As always, consult and document, and err on the side of caution.

The Experts Address Patient Abandonment

Canter et al. (1994) comments, “The paramount consideration is a high standard and suggests that financial considerations in agreements will be held to be secondary to the client concerns” (p. 100). She continues, “On the basis of professional practice and literature, abandonment is commonly understood to mean that a client is (a) left without an appropriate resource to turn to when the therapist is unavailable and (b) is discontinued as a client without formal termination and referral as needed” (p. 101). In both these quotes, Canter et al. note that abandonment occurs when the patient is left without proper support and consideration.

Welfel (2002) notes that a failure to continue needed psychotherapy services is “abandonment” and is inappropriate. Psychologists may not stop conducting therapy on a “whim” or out of dislike for, or anger at, a patient. Welfel advises proper termination if the patient fails to pay for services by giving a proper referral to alternative service with the psychologist facilitating the transition. “If other services are not immediately available, counselors may not abandon clients in need because of non-payment of fees” (p. 258).

Therapists may be sued for patient abandonment for terminating with a patient who still needs therapy, who has been given no suitable substitute, and who suffers damages as a result of the termination (Van Susteren, 2001, p. 1). Because of the caring nature of the relationship between a psychotherapist and his or her client or patient, psychotherapists have a much more broad and complex responsibility than do those in “ordinary” business relationships between customers and their providers. Thus, psychotherapists who wish to end or terminate a therapy relationship with a patient or client must proceed with great caution (Van Susteren, 2001).

Proper Termination

If the psychologist has decided that he or she wishes to begin the termination process with a client who has not suggested termination on his or her own, it is a very tricky issue (Van Susteren, 2001). Primarily the client may feel abandoned and rejected, which is a clinical issue that must be handled in the termination process. Consultation throughout the entire process is suggested to aid in a smooth transition and ensure objectivity. Indeed, termination should not be suggested by the psychologist until a proper professional consultation has taken place in order to both protect the psychologist from being accused of abandonment or retaliation against the patient, and to protect the patient’s best interests in the transition process.

Professional consultation is the start of any termination procedure that is initiated by the psychologist against the will of the patient. In some cases, the patient will agree to the termination readily, as it is an appropriate next step in the treatment. In other more difficult cases, the patient will balk at the suggestion and become angry and enraged. However the patient reacts, the psychologist must be prepared not to weaken and reverse decisions in the face of an angry or upset patient if it is the proper therapeutic course of action.

In the case where the psychologist has to terminate the psychotherapy in advance of the completion of the client’s/patient/s treatment needs, APA 10.09 presents guidelines. In the case where HMO or insurance benefits run out (“where the employment or contractual relationship ends”), the psychologist puts the needs and the welfare of the patient first.

The Experts Address Proper Termination when Both Parties are Ready to Terminate

Psychoanalytic/Psychodynamic Perspective

“The proper ending of an analysis is when neither the (therapist) nor the patient puts an end to it but when it dies from exhaustion” (Curtis, 2002, p. 85). Typically, an analytic termination comes at the conclusion of a long treatment where “the reduction of symptoms and elimination of specific pathological processes that brought about the symptoms” has been accomplished (Freud, 1937/1953, 320). Firestein, in 1974, enumerated the psychoanalytic goals of treatment, some of which had to be accomplished in order to consider termination:

• Ability to work and love
• Symptom disappearance
• Structural changes in personality
• Termination based on analyst intuition
• Transference resolution
• Assessment of counter-transference issues

Curtis (2002) suggests an “open door” policy where the client/patient can return when necessary, which is a more contemporary approach compared to the founders of psychoanalysis. Curtis, after summarizing and reviewing the entire treatment, coping mechanisms, and future plans, works with the patient to schedule a final termination session, What was addressed, what was not addressed, what was helpful, what was not, and how to deal with crises is a focus of the termination process. “In a long or intense relationship, therapist should tell patient that he or she would be pleased to hear from the patient at some point” (Curtis, 2002, p. 3.)

Cognitive-Behavioral Perspective (CBT)

Because CBT is traditionally a shorter-term structured model with emphasis on direction, homework assignments, and between-session activities, the goals of treatment differ from, and are accomplished differently than, the psychoanalytic model. The psychologist may be more directive, use specific techniques to modify behavior or faulty thinking or learning, or to modify behavior to increase confidence and improve relationships. “During the maintenance phase…CBT therapists are less directive, and their role is much like that of a lifeguard – to actively intervene only when absolutely necessary” (Goldfried, 2002, p. 7). Goldfried (2002) enumerates the goals of the CBT termination process:

• Coping skills development
• Less emphasis on therapist-client relationship
• Less likely complex relationship between therapist and client
• Paradox: successful interventions reduce client motivation to continue treatment
• Tapering off sessions allows client the opportunity to use new skills in a safe place

Proper Referrals

There is not a great deal of literature with regard to proper referrals. Most attorneys will advise you to consider the following three issues when making referrals to any patient, especially one whom you have chosen to terminate (Stromberg et al., 1988; Behnke, Preis & Bates, 1998):

• Give referrals that are available
• The referral must be contacted by the psychologist to establish that he or she is taking new individual patients of the type, diagnosis, age, etc. you are referring
• Give referrals that have a similar fee structure as the referring psychologist
• Standard of care requires the original psychologist refer the patient to another professional with an affordable fee similar to the fee the referring psychologist charged
• Give referrals that have a “standard of care” theoretical orientation
• It is appropriate to refer the patient to another professional who works within the established boundaries of normal practice (Stromberg et al. 1988; Behnke, Preis & Bates, 1998)

The client should be given a reasonable amount of time to establish a relationship with the new therapist by allowing for the availability of the former psychologist in case of a crisis or emergency situation. Consultation will help establish a proper period of time for availability after the close of therapy based upon DSM diagnosis and patient reaction. This is most certainly a situation in which a psychologist should seek expert and legal consultation in order to avoid areas of legal and ethical vulnerability due to patient abandonment.

Terminating the Patient Who Presents a Serious Danger to the Psychologist

Gentile, Asamen, Harmell, and Weathers (2001) did research on clients who stalk their psychologists. Ten percent of psychologists responded to the survey research with a subject pool of thirty psychologists. Psychologists who were stalked had no specific demographics. However, clients who stalked their psychologists had very specific demographics. The results of the research found that the client stalkers demographics were:

• 80% single or divorced at the time of the stalking
• 94% Caucasian
• 93% graduated high school or had a GED
• 62% had mood disorders
• 76% had personality disorders
• 64% had Borderline Personality Disorder
• 79% had one or more negative childhood experiences with a caregiver
• 68% underwent childhood abuse: emotional, physical, or a mixture
• 73% had one or more recent losses or stressors
• 41% experienced a divorce or breakup of an intimate relationship

Meloy (1996) discussed therapist-stalking using the term “obsessional following” as the clinical equivalent of the legal term stalking. Zona, Sharma and Lane defined obsessional following as “abnormal long-term pattern of threat or harassment directed toward a specific individual” (1993, p. 896). Gentile, Asamen, Harmell, and Weathers (2001) pinpointed the steps that the psychologists who were stalked took to protect themselves during and after the staking incident. The authors suggest these steps, when possible, be taken by all psychotherapists who are in clinical practice:

• Have an unlisted home address and phone number
• Maintain a home alarm security system
• Maintain an office security alarm system
• Avoid a home-based clinical practice
• Urban therapists should live in a separate town from their clinical practice
• Immediate contact with the anti-stalking task force for advice when a problem occurs

History of How This Applies To Psychologists and Which Ethics Codes Apply

It was in 1989 when Erik and Lyle Menendez threatened their psychologist’s life in Beverly Hills, California after Erik, the younger brother, confessed to murdering his parents in the psychologist’s office. The psychologist made an audio tape of everything he could remember about the confession and placed it in a safe deposit box, thereby attempting to protect his own life and the lives of his family and others associated with him. When both brothers began coming to sessions to discuss their rationale for murdering their parents, the psychologist told them about the audio tape, informing them the tape would remain in the safe deposit box unless “anything were to happen” to the psychologist, his family, or anyone associated with him.

Earlier, when the older brother, Lyle, whom the psychologist believed was the more dangerous brother, had discovered that Erik had confessed the murders to their psychologist, Lyle came to the session and made threats to the psychologist and “everyone associated with him” in the presence of Erik. Unbeknownst to the brothers, the psychologist had asked his girlfriend to “eavesdrop” on the session, worrying that he might hear a confession. Once he was in receipt of the confession, the psychologist set about protecting himself and his family (and his girlfriend) while continuing to see the brothers.

Lyle asked to have one of the “therapy sessions” audiotaped in order to prepare a “defense,” as the police were quickly closing in on the brothers as primary suspects. When the psychologist’s girlfriend went to the Beverly Hills police to report the psychologist had audiotapes of the “sessions” with the Menendez brothers, the police quickly got a court order to confiscate the tapes.

Shortly thereafter, the brothers were arrested for the murder of their parents. Since the main defense in the case was child sexual abuse, the “session” tapes were expected to be full of complaints of childhood memories of sexual abuse within the family, especially between the father and the sons. Upon reviewing the tapes, sexual child abuse was never mentioned on the tapes - not once.

During the trial, and trial preparation, there were several appeals as to whether or not the audiotapes of the “sessions” should be allowed into the trial as evidence. Of course, the defense team tried to apply patient-therapist privilege to the tapes as they wished the tapes left out of the trial, because of the lack of evidence to back up the defense claim that the boys murdered their parents because they were sexually abused.

Naturally, the prosecution wanted the tapes in court to prove there was no sexual abuse as it was never discussed with the psychologist as a reason for murdering their parents. After nearly four years of back-and-forth appeals, the appellate court made a decision: The tapes of the “sessions” would be allowed into court as evidence and would not be protected by patient-therapist privilege. This was because once the psychologist was threatened by the brothers, the psychologist was no longer conducting therapy with them. Once a psychologist is threatened by a patient, therapy can no longer occur, according to the final decision by the appellate court. Thus, the taped session, having come after the threat, was not taping a therapy session at all, so patient-therapist privilege did not apply

How This Decision Was Integrated Into The 2002 Ethics Code

Fisher (2003) states, “a noteworthy change in the 2002 Ethics Code is the elimination of the 1992 code’s broadly worded prohibition against abandoning the client.” Termination based on reasonable professional judgment and proper pretermination counseling is ethically appropriate.

The 1992 Ethics Code was more rigid about taking time to make certain the client/patient was established with a replacement psychologist prior to termination in the case of danger to therapist. As Fisher (2003) notes, the new 2002 code is much more lenient. We may speculate the Code was made more lenient here specifically due to cases such as the Menendez brothers where the psychologist’s life is threatened, or he or she is stalked. There is not always time, nor is it always wise to take the time, to continue seeing a patient whom the therapist believes is dangerous to the psychologist or someone with whom the psychologist has a relationship.

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REFERENCES

American Psychiatric Association. (2002). Diagnostic and Statistical Manual of Mental Disorders, fourth edition – Text Revision. APA: Author.

American Psychological Association. (1994). APA’s New Record Keeping Guidelines. Monitor, 89, 984-986.

American Psychological Association. (1981). Specialty Guidelines for the Delivery of Services. Washington, DC: Author.

Applebaum, P., & Guthiel, T. (1991). Clinical Handbook of Psychiatry & Law. Baltimore: Williams & Wilkins.

Baerger, D. (2001). Risk management with the suicidal patient: Lessons from case law. Professional Psychology: Research & Practice, 32, 359-366.

Bednar, R., Bednar, S., Lambert, M., & Waite, D. (1991). Psychotherapy with High-risk Clients: Legal and Professional Standards. Pacific Grove, CA: Brooks/Cole.

Behnke, S., Preis, J., & Bates, R. (1998). The Essentials of California Mental Health Law. NY: Norton.

Bennett, B., Bryant, B., VandenBos, G., & Greenwood, A. (1990). Professional Liability and Risk Management. Washington, DC: APA.

Benningfield, A.B. (1994). The impaired therapist. In G.W. Brock (Ed.), American Association for Marriage & Family Therapy Ethics Casebook (pp. 131-139). Washington, DC: Amer. Assn. for Marriage & Family Therapy.

Berner, M. (1998). Informed consent. In L. Lifson & R. Simon (Eds.), The Mental Health Practitioner and the Law (pp. 23-43). Cambridge, Mass: Harvard University Press.

Bouhousos, J., Holroyd, J., Lerman, H., Forer, B, & Greenberg, M. (1983). Sexual intimacy between psychotherapists and patients. Professional Psychology: Research & Practice, 14,185-196.

Campbell, C., & Gordon, M. (2003). Acknowledging the inevitable: Understanding multiple relationships in rural practice. Professional Psychology: Research & Practice, 34, 430-434.

Campbell, W.C. (April, 2004). Current Psychiatry Online. http://www.currentpsychiatry.com/

Canter, M., Bennett, B., Jones, S., & Nagy, T. (1994). Ethics for psychologists: A commentary on the APA ethics code. Washington, DC: APA

Cato Institute. (1776/2002). The Declaration of Independence and the Constitution of the United States. Washington, DC: Author.

Caudill, B., & Pope, K. (1995). Law and Mental Health Professionals. Washington, DC: APA

Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: Ethical, legal & clinical considerations. Ethics & Behavior, 4, 43-57.

Corey, G., Corey, M., & Callanan, P. (1998). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.

Cranston, C. et al. (1988). Inter-professional collaboration: Who is doing it? Who isn’t? Developmental and Behavioral Pediatrics, 9,134-139.

Cummings, N. (1995). Unconscious fiscal convenience. Psychotherapy in Private Practice, 14, 24-25, Pacific Grove, CA: Brooks/Cole.

Curtis, R. (2002). Termination from a psychoanalytic perspective. Journal of Psychotherapy Integration, 12, 350-357.

Department of Justice (2002). Child Prevention Handbook… and Intervention Guide. http://www.safestate.org/ (download Child Prevention Handbook)

Emerson, S., & Markos, P. (1996). Signs and symptoms of the impaired counselor. Journal of Humanistic Education and Development, 34, 108-117.

Epstein, L., & Feiner, A. (1979). CT: The therapist’s contribution to treatment. Contemporary Psychoanalysis, 15, 489-513.

Ewing v. Goldstein (2004) Cal.App.4^th (downloaded on 8/23/04 fsnews.findlaw.com/cases/ca/caapp.4^th/slip/2004/b163112.html)

Falender, C. & Shafranske, E. (2004). Clinical Supervision: A Competency-based Approach. Washington, D.C.: APA.

Firestein, S. (1974) Termination of psychoanalysis of adults: A review of the literature. Journal of the American Psychoanalytic Association, 22, 873-894.

Fisher, C. (2003). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.

Freud, S. (1937/1953). Analysis terminable and interminable, (In J. Strachey (Ed.), Collected papers (Vol. 5, pp. 3150357). London: Hogarth. (Original work published 1937)

Gardner, B. (Ed.) (1996). Black’s Law Dictionary, (1996). St. Paul, MN: West Publishing Co.

Gentile, S., Asamen, J., Harmell, P., & Weathers, R. (2002). The stalking of psychologists by their clients. Professional Psychology: Research & Practice, 33, 490-494.

Goldfried, M. (2002). A cognitive-behavioral perspective on termination. Journal of Psychotherapy Integration, 12, 364-372. (downloaded 5/29/04 www.psychinfo.com/psycarticles/2002-17812-007.html)

Grossman, C. (1965). Transference, CT, and being in love. Psychoanalytic Quarterly, 34, 249-256.

Guralnik, D.B. (Ed.) (1983). Webster’s New World Dictionary. NY: Warner

Guthiel, T. (1980). Paranoia and progress notes: A guide to forensically informed progress notes. Hospital and community Psychiatry, 31,479-482.

Harmell, P.H. (1987). The Effects of Therapist Self-Awareness of Counter-transference. Unpublished doctoral dissertation.

Heiman, P. (1950). On countertransference. International Journal of Psychoanalysis, 31, 81-84.

Johnson, S. (1997). Therapist’s Guide to Clinical Intervention. London: Academic Press.

Jongsma, A. (2001). The Adult Psychotherapy Progress Notes Planner. NY: Wiley

Juhnke, G.E. (1994). SAD PERSONS scale review. Measurement & Evaluation in Counseling & Development, 27, 325-328.

Juhnke, G.E. (1996). The adapted SAD PERSONS: An assessment scale designed for use with children. Elementary School Guidance and Counseling, 30, 252-258.

Kapp, M. (1987). Interprofessional relationships in geriatrics: Ethical & legal considerations. Gerontologist, 27, 547-552.

Kernberg, O. (1965). Notes on countertransference. Journal of the American Psychoanalytic Association, 13, 38-56.

Langs, R. (1982). CT & the process of cure. In: S. Slipp (Ed.) Curative Factors in Dynamic Psychotherapy. pp. 127-152. NY: McGraw-Hill.

Lee, C., & Richardson, B. (1992). Multicultural Issues in Counseling: New Approaches to Diversity. Alexandria, VA: American Counseling Associates.

Meloy, J. (1996). Stalking (obsessional following): A review of some preliminary studies. Aggression and Violent Behavior, 1, 147-162.

Meyer, C. (1997). Expanding Tarasoff: protecting patients and the public by keeping subsequent caregivers informed. The Journal of Psychiatry & Law, fall, 365-375.

Olarte, S. (1997). Sexual boundary violations. In The Hatherleigh guide to ethics in therapy (pp. 195-209). NY: Hatherleigh Press.

Otten, A. (1998). Mental Health Parity – What Can It Accomplish in a Market Dominated by Managed Care? (Downloaded 11/10/04 www.milbank.org/mrparity.html)

Otto, R. (1992). The prediction of dangerous behavior: A review and analysis of “second generation” research. Forensic Reports, 5, 103-133.

Patterson, W., Dohn, H, Bird, J., & Patterson, G. (1983). Evaluation of suicidal patients: The SAD PERSONS scale. Psychosomatics, 24, 343-349.

Pelchat, Z. (May/June, 2001). The standard of care: Definitions and examples. The California Therapist. San Diego: CAMFT.

Pope, K. (1994). Sexual Involvement With Therapists. Washington, DC:APA.

Pope, K., & Vasquez, M. (1998). Ethics in Psychotherapy and Counseling (2nd ed,). San Francisco: Jossey-Bass.

Racker, H. (1953). A contribution to the problem of CT. International Journal of Psychoanalysis, 34, 313-324.

Simon, R. (2001). Psychiatry and the Law. Washington, DC: American Psychiatric Press.

Stadler, H. A. (1990). Counselor impairment. In B. Herlihy & L. Golden (eds.), AACD ethical standards casebook (4^th ed.) (pp. 177-187). Alexandria, VA: American Association for Counseling and Development.

Steinman, S. O., Richardson, N. F., & McEnroe, R. (1998). The Ethical Decision-Making Manual for Helping Professionals. Pacific Grove: Brooks/Cole.

Stromberg, C., et al. (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.

Thompson, A. (1990). Ethical Practices in Psychotherapy. NY: Wiley.

Van Susteren, L. (2001). Psychiatric abandonment: Pitfalls and prevention. Psychiatric Times, xvii, issue 8. (retrieved 8/14/01) www.psychiatrictimes.com/po10836.html

Welfel, E. (2002). Ethics in Counseling and Psychotherapy: Standards, Research & Emerging Issues.

Zona, M., Sharma, K., & Lane, J. (1993) A comparative study of erotomatic and obsessional subjects in a forensic sample. Journal of Forensic Sciences, 38, 894-903.

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