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This is a beginning to intermediate level course. After completing this course, the California psychologist will be able to:
The material contained in this course is the professional and personal understanding of its author’s interpretation of the experts that are referred to throughout the course. 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 personal understanding.
The authors cited herein are accepted and published experts in the field of legal and ethical issues in psychology. Included are current opinions, case law when applicable, California statute, and interpretations of the new APA Ethics Code, especially the work of Celia B. Fisher, Ph.D., Chair of the APA Ethics Code Task Force that completed the current revision (Fisher, 2003).
This course is not a legal reference, and it does not offer legal advice or legal interpretations other than those of the experts as cited. 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.
The California licensing board requires a course in Professional Ethics for every two-year license renewal. Since this is not a one-time requirement, this course will be a fundamental course followed each renewal period with a brief basics review, and updates and expansions to current standards of care and ethics.
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 CAPITALS HEADINGS. Subheadings are Bold but not all caps.
When instructed to do so, the reader may use the link provided to review the specific APA Ethics Code for answers to the quiz questions. Alternatively, the Ethics Code can be printed for reference from the APA website: Principles of Psychologists & Code of Conduct (APA, 2002).
References for material will be given throughout the text, with a reference list at the end of each section.
Question 1
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 an example of this exception?
State Law supersedes federal law:
(c) is the correct answer. With regard to HIPPA (to be discussed in another section), State Law supersedes Federal Law if the State law provides more protection to the patient’s records than do the provisions of the Federal HIPPA laws.
The complete title of the APA ethics code 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 draft approval by the membership, the first code was adopted by the APA in 1952 and published in 1953.
The purposes of the current ethics code are many, including establishing the integrity of the profession, providing a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and being able to adjudicate (APA, 2002; Please see Fisher, 2003 for most recent interpretation of 2002 code).
There are five important reasons for having an ethics code:
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. Worse still, outside regulators might use standards that are not applicable to psychologists in this adjudication.
The current code was adopted in 2002 and took effect in June 2003. This course will refer to the current code.
There are two primary sections:
|
Aspirational (unenforceable) |
Enforceable |
|
Introduction |
Numbered Codes |
|
Preamble |
Ethical Standards |
|
General Principles |
1.01 to 10.10 |
|
A-E |
82 Codes |
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, the creators did not have this in mind. It looks at “reasonable” prevailing judgment and considers the dictates of one’s own conscience, and strongly encourages professional consultation with colleagues.
The Preamble section discusses psychologists’ commitment to science in the improvement of the lives of others. Psychologists have a lifelong effort to act ethically.
The General Principles AE guide and inspire psychologists to act with the very highest ideals considering patient welfare as the primary concern.
The 82 numbered standards are the only enforceable part of the Code. These can be used in any state or APA ethics committee adjudication proceedings, and have been used in malpractice suits and licensing board violations.
Question 2
The APA Code of Ethics is a legal document:
Question 3
The Aspirational (unenforceable) section of the code contains:
NOTE: See Section A – Introduction to APA Ethics Code for review of answer material below:
The answer to question 2 is, of course, (b). As mentioned earlier, the document is not to be used as a legal document, but as a guideline and set of standards.
The answer to question 3 is (c), as explained above.
There are four elements of a malpractice suit. All four must be believed to have been met for an attorney to prevail in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, are reflected in out-of-court settlements.
A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether 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 the client that they 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 will develop an assumption he has begun treatment. 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 longer-term therapy? 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 the parties have not decided if they wish to work together by about the third session, the civil court may decide for them that a “duty” of care has been established. The exchange of money alone does not establish a duty; however, if there is nothing else for the court to consider, it may look at financial matters in an attempt to establish responsibility.
Standard of Care: The standard of care refers to the level of proficiency against which any other psychologist’s work will be measured or compared – what any other trained psychologist with reasonable experience would do, or the minimum below which a psychologist must not fall (Stromberg, et al, 1988; Caudill & Pope, 1994). Generally, the standard of care is defined by state statute (e.g., Penal Code 11166, child abuse report law) 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 it 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). These authors go on to explain that competent treatment can lead to unsuccessful results without the treatment having been 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 the damages? The idea is to return a harmed individual to the condition in which she existed prior to the harm. This can be done in only one way – in a civil suit: 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 to the victim.
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 their acts that “caused” the damage to the client. The question is, Would the client have been damaged if the psychologist had done anything differently? When injury is alleged to have occurred, 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 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 along with a bottle of vodka. 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
Since Jenny and Dr. Brown had been seeing each other in a therapeutic environment, the first element of a malpractice suit has been met because there was:
Question 5
Dr. Brown was probably not adhering to the current ethics code for psychologists, the statutes of his state, or the recent case law. Therefore, he probably:
Question 6
Since Jenny wound up in the hospital after talking with Dr. Brown, this probably is evidence of:
Question 7
If Jenny would have been fine if her psychologist had treated her in a more appropriate manner, this is proof of:
Questions 4-7 in order: 4 – a duty of care is established when a client-therapist relationship is developed or created. When Dr. Brown failed to follow the ethics code of his profession, he was 5 – breaching the standard of care of his profession. The answer to question 6 is demonstrable harm. Since his patient wound up in the hospital, harm could be demonstrated. If it could be proven (which is very difficult to do) that the patient would not have suffered damages (or they would not have been as serious) had Dr. Brown done anything differently, then 7 – proximate cause can be claimed by the attorney of the patient.
Baerger (2001) notes, “the fear of being sued may adversely impact clinicians more than the lawsuits themselves” (p. 359). Estimates of the chance of being sued for malpractice range from 1% to 12%, depending upon the accusation (Baerger, 2001). Experts in legal and ethical matters agree that the methods of minimizing the risk of a malpractice suit (Baerger, 2001; Caudill & Pope, 1995; Welfel, 2002; Bongar, Maris, Berman & Litman, 1998; Clayton & Bongar, 1994; Cranston et al., 1988) are:
There are numerous elements to be taken into account when a new client calls for treatment. There are five main factors that must be considered regardless of who is on the other end of the phone or who is seeking therapy. These “five always” can be represented by the shortcut, CCARQ
C….Culture
What is the culture of the person seeking treatment? Lee and Richardson (1992) tell us that every therapy relationship is a “cross-cultural” relationship because everyone who enters a psychologist’s office, no matter who they may be, is of a diverse culture from the psychologist. In other words, the psychologist must consider the differences between the two individuals in every case because every person walking into a psychologist’s office is of a different culture than the psychologist.
C….Counter-transference
This means that every client must be considered for the possible impact she has on the psychologist. The psychologist must be able to intelligently evaluate his condition and his ability to handle difficult situations in order to avoid the negative effect of counter-transference on the therapeutic relationship.
A….Area of Competence
All psychologists should be able to handle all the diagnoses in the DSM, something that is simply not realistic. What this actually means is that psychologists must be able to identify their limitations, such as 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, know when to refer out, or to get proper consultation when gaining new skills.
R….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 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 a 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 treating for a mental disorder.
Q….Question the Reporter
It is not uncommon for a new client to attribute her range of symptoms to another person close to her, such as a significant other or loved one. For example, the psychologist might hear, “My boyfriend is an alcoholic and I don’t know what to do,” when the primary patient is actually the person with a drinking problem.
There are four mechanisms holding psychologists accountable for their actions as mental health professionals:
This agency “giveth and taketh away” the ability to practice psychology. It decides how many hours of continuing education must be taken to continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychologist fails to respond to its dictates. Licensing boards report licensing violations to a central national agency that keeps track of such violations; this is also where state boards can consult to see if an applicant has a pending or past violation. Licensing boards communicate settled or pending violations to ethics committees at some point in the process, depending upon the violation.
This second mechanism 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. Ethics committees communicate with licensing boards at some point along the way when there is an ethics violation.
Mechanism three is a generally unpleasant reality in American society – when one citizen takes civil action against another citizen. In a civil suit, the only thing being claimed is damages, and the only remedy is money. A psychologist does not want to be confronted by this element of accountability, as it is generally grindingly slow and complex, as well as expensive.
This is the least likely of the four mechanisms that hold a psychologist accountable for practice behavior. If there is an unfortunate outcome such that the Attorney General has gotten involved in criminal allegations against the psychologist, the psychologist can find himself spending time in a jail cell. Examples of such behavior include insurance fraud, and sexual exploitation, especially of a minor.
American Psychiatric Association. (2002). Diagnostic and Statistical Manual of Mental Disorders, fourth edition – Text Revision. APA: Author.
Gardner, B. (Ed.) (1996). Black’s Law Dictionary, (1996). St. Paul, MN: West Publishing Co.
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.
Cranston, C. (et al.) (1988). Inter-professional collaboration: Who is doing it? Who isn’t? Developmental and Behavioral Pediatrics, 9,134-139.
Fisher, C. (2003). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.
Lee, C., & Richardson, B. (1992). Multicultural Issues in Counseling: New Approaches to Diversity. Alexandria, VA: American Counseling Associates.
Stromberg, C. (et al.) (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.
Privacy is suggested by the Fourth Amendment (December 15, 1791) of the Constitution of the United States. Basically, it gives people the “right to secure their houses, papers, and effects, against unreasonable searches and seizures…” (The United States Constitution). Privacy is the most basic of the three terms in this section (Cato Institute, 1776/2002).
Confidentiality is an ethical term that denotes a contract between the patient and the psychologist wherein the psychologist promises to keep all utterances as confidential communications, except those disclosures required by law. 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 the release of confidential patient material in legal proceedings such as subpoenas for records or testimony.
Evidence Code 1013 defines “Holder of Privilege” as (see website for actual laws - www.leginfo.ca.gov/calaw.html):
Question 1
You receive a subpoena for the records of Jane Doe, a current patient. In order to release the records, you need a release for the records from Jane. This falls within the area of:
Question 2
LaTesha is the sister of your deceased client. LaTesha calls you wanting her sister’s records and says she has sent you a self-addressed envelope in which you are to mail her sister’s records to her. She would appreciate you sending them as quickly as possible for her own personal reasons. Can you release the records to LaTesha’s sister? Why or why not?
NOTE: See Section B - Introduction to Privacy, Confidentiality & Privilege for review of answer material below:
For Question 1, (c) is best answer, as subpoenas are related to the release of legal documents. Even though a subpoena does not have the power of a court order, it involves the element of privilege for which there must be compliance.
Question 2 is a bit more complicated, as the best answer is (d), personal representative. 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 in the will of the deceased.
The APA Ethics Code Section 4 Privacy and Confidentiality lends guidance here. Please briefly review now for future reference.
APA 4.01 Maintaining Confidentiality reminds psychologists to take reasonable precautions to protect confidential communications gained in the course of their work.
After going through the legislative process, a law is given a number such as Evidence Code 1024 or Penal Code 11166. Once it 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,” 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 as closely as state legislation because it represents precedents. This is relevant here as Tarasoff began in California as case law.
In 1976, the California Supreme Court Justices made some important rulings that forever changed the responsibilities for all mental health professionals. Prior to the Tarasoff decision, Evidence Code 1012 required psychologists to keep all utterances confidential and Evidence Code 1024 required psychologists to disclose to a potential victim possible threats made against that person to the psychologist. Evidence Code 1024 further suggested psychologists disclose possible danger to property or danger to self (i.e., suicidal activity).
These codes modified after Prosinjit Podder, a young man from India, fell hopelessly and madly in love with Tatiana Tarasoff. He later became outraged with dissatisfaction when her level of commitment to the relationship did not meet his own. He murdered Tatiana after confessing his desire to cause her bodily harm to his psychologist at Cowell Memorial Hospital, an outpatient clinic serving UC Berkeley.
This resulting Supreme Court case law ruling in California (1976) was later codified in 1985 as:
Communicated to psychotherapist directly by patient
Serious threat of physical harm that is imminent
This will be discussed later in this section
Reasonably identifiable victim
Once the threat reaches the threshold of the three requirements in CC 43.92(a) above, then CC 43.92(b) must be followed as quickly as is reasonably feasible:
Warn potential victim(s)
Notify authorities
Not codified, yet clear in the Tarasoff decision of 1976:
The Tarasoff Supreme Court Justices did not enumerate the above steps and, in fact, stated psychotherapists are to “take whatever other steps reasonably necessary under the circumstances” (Tarasoff, p. 426).
Question 3
Frank calls your office saying, “My roommate Bill is your patient! He is heading for McDonald’s where he works! He has a gun and he is going to shoot the guy who fries up the burgers! You gotta do something!!!”
Is this Tarasoff?
NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:
If you answered (b), you realized that the roommate told you about Frank being a danger to the fry cook; thus, it is not Tarasoff. Tarasoff dictates the therapist be told the threat against the identifiable victim directly from the dangerous patient. Here, the roommate told you of the threat.
Obviously, this is an ethical situation and you would instruct the caller how to proceed to help save the life of the fry cook (e.g., tell caller to inform the police or call McDonald’s management). Caution! Do not disclose the confidentiality of your patient. This could be a crank caller and not the real roommate. Use caution and do not panic in a situation where Tarasoff may need to be invoked.
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.
The fascinating thing about case law is that higher courts love to be legislators! They like to make law, not just make rulings on law.
The role of case law is not to assign blame to any psychologist for making an “error,” but to see what the fact-finders did that added to the standing law making new case law. This new case law is known as “precedent” and should generally be followed thereafter. Thus, whenever we discuss case law, we are not interested in mistakes made or blame found; we are interested in new precedent set in order to identify our new responsibilities.
In the Hedlund case, an unmarried couple received counseling from an Orange County Counseling Center intern. The man made a threat to the woman during a session; he eventually acted on this by shooting her while she sat in her car shielding her 3-year-old son from the bullet.
The judge declared in the appeal that the son was owed a duty to be protected by the Counseling Center psychologists (along with protection for the mother) under the dictates of Tarasoff. Thus, the extension to Tarasoff of warning “all foreseeable bystanders” became precedent but not statute.
Since it is not feasible to telephone a 3-year-old child with a Tarasoff warning, the court felt it was reasonable to expect that a child that young would have been with his mother when the threat might be carried out. Therefore, in subsequent similar cases, foreseeable bystanders are owed a Tarasoff duty. Once again, we are to use the “reasonable psychologist” standard of care — what would a reasonable psychologist do in your situation?
In this famous case, an adult man told his psychologist he was so angry with his father he was going to burn down part of the father’s farm. The psychologist in Vermont evaluated this situation for Tarasoff and decided it did not meet the threshold for a mandatory report. Later, the patient did burn down an uninhabited portion of the farm. The court disagreed with the psychologist, and ruled in favor of the father in deciding he should have been given a Tarasoff.
This is the only ruling that seems to have survived the years with regard to the damage to property section of California Evidence Code 1024 in which psychologists may include damage to property under the Tarasoff mandate. In sum, it seems that the use of arson in an attempt to damage property could be considered a Tarasoff mandate given the Peck ruling of 1983.
Once again, the standard of care is to consult with an expert (ethics expert, attorney, your malpractice insurance company, etc.) and document your decision-making method prior to breaching the confidentiality of a patient.
This California case is known as the “Veteran’s Administration (VA)” case in which a man being treated as an outpatient at a local VA murdered his girlfriend. The precedent set here is the judge ruled that, in settings where it is possible, psychologists are required to attempt to seek the past therapy records of patients they are treating who may be dangerous to others.
Basically, in the patient’s previous VA treatment records, it was noted he had threatened his former wife with bodily harm. From this precedent, psychologists must either seek former records when treating dangerous patients or their document attempts to do so.
Karen Scancarello was a very troubled young woman who had severe problems with depression and suicidality for several years. After driving her car into a tree, purposely ingesting fifty halcyon tablets, and attempting to strangle herself, she was admitted to the University of Southern California (USC) medical center. Previously, she had been treated by Drs. Allen and Pitts, two psychiatrists at USC, for medication management (Jensen, 2005).
Ms. Scancarello insisted on entering an eating disorders inpatient program at Northridge Hospital after gaining weight when her physicians gave her Prolixin injections rather than oral medication due to her tendencies to overdose on oral medication.
Her physician at USC, Dr. Allen, forbade her to enter the program, telling her she was inappropriate for it due to her suicidal ideation and constant, 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 Scancarello’s severe suicidal behavior, despite his earlier extreme objection to her appropriateness for the eating disorders program. She was then admitted into the eating disorders program as an inpatient.
Unfortunately, she sneaked in Nardil that her mother had failed to confiscate, and she quickly overdosed. After five weeks in a coma, she was left with permanent brain damage. She sued Northridge, and Dr. Gross, and ultimately won $30,000 from the hospital and $399,000 from Dr. Gross. Dr. Gross cross-complained against Dr. Allen and won. The California appellate decision against Dr. Allen included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers (here, Dr. Gross) when the patient is dangerous to self.
Jensen (2005) notes that “in Gross, the Court of Appeal affirmed the jury’s verdict that Dr. Allen had been negligent by failing to disclose certain information to Dr. Gross (the subsequent caregiver). The Court of Appeal reached this conclusion by examining the cases through the lens of the ‘special relationship’ that a psychiatrist has with his or her patients” (p. 25). In other words, the decision does not only apply to medical doctors or psychiatrists, but to all psychotherapists, due to the special relationship between the patient and psychotherapist.
Meyer (1997) discusses this case with regard to psychologists, even though it originally involved a psychiatrist, because this is a California case. 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).
Use caution here when exchanging information about a suicidal patient without release of information from that patient.
In Bellah, a California psychiatrist concluded that his young adult patient, who was a serious drug addict, was suicidal, but the psychiatrist 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 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 Gross v. Allen (1994) concludes, ”Bellah has fostered a ‘false sense of security’ all these years.” 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…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.)
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. Thus, extending Tarasoff to suicidality has not been formally tried in a court setting, with the exception of Gross v. Allen.
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.
On the other hand, Jensen (2005) posits that the Bellah court decided that Tarasoff did not apply to suicidal patients. Jensen states that the Bellah court declared, “We conclude that Tarasoff requires only that a therapist disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or mere property damage (p, 24). Jensen continues: “The Court did not want to create another mandated exception to confidentiality because it believed the exception could impede access to mental health services” (p. 24).
Once again, these are the opinions of two experts and might not be considered case law or standard of care at this time in your state. If you are faced with this dilemma, remember to consult with an expert and document the consultation in the patient’s file.
The chart below is divided into three categories of dangerousness: Tarasoff, where all three requirements are met; Homicide, where only one or two requirements are met; and Suicide, which does not invoke Tarasoff under Bellah (1978).
|
TARASOFF |
HOMICIDE |
SUICIDE |
|
Mandated to breach confidentiality |
Permitted to breach confidentiality |
Permitted to breach confidentiality |
|
- warn victim(s) |
||
|
Mandated to take steps to prevent threatened danger |
Mandated to take steps to prevent threatened danger |
Mandated to take steps to prevent threatened danger |
NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:
Question 4
Joe tells you he is going to kill his brother with a gun from his collection on New Year’s Eve and today is September 2. Is this Tarasoff?
If you guessed (c), you are correct. Only two requirements are met — he told you directly and his brother is identifiable. Three months in advance is not imminent danger.
Question 5
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?
The best answer here is (a). It is too soon to invoke Tarasoff (the second answer) as you would take intervening steps first (see above discussion of such steps). At this point, hospitalization is nearly impossible without patient permission; thus, the third answer is inappropriate. The last answer is a subset of the first answer, thus the first response is a more inclusive.
TARASOFF – POST-EWING
Ewing v. Goldstein (2004), Cal.App.4th [No.B163112.Second Dist., Div. Eight. Jul.16, 2004]
In California, an entirely new twist in duty to warn and protect has been decided. 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, between 1997 and 2001, was treating Geno Colello, a former member of the Los Angeles Police Department, for work-related emotional problems and problems related to a breakup with his girlfriend. Colello became increasingly depressed and despondent over the breakup after learning of her romantic involvement with another man. Goldstein met with Colello on June 19, 2001, and spoke with him by telephone June 20 and 21 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, and told them he was severely depressed over his girlfriend being with another man and he had lost the desire to live. He was extremely resentful toward the new boyfriend, telling his father he could not handle it and that he was considering causing harm to the new boyfriend. Victor Colello contacted Goldstein, telling Goldstein his son 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, and was treated by Gary Levinson, MD, a staff psychiatrist.
The following day, Levinson planned to release Colello. The father, Victor, allegedly contacted Goldstein reporting that Geno was being released. Goldstein, who had not yet spoken with Levinson, contacted him 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 him to reevaluate Colello and keep him hospitalized through the weekend.
Levinson discharged Colello on June 22. Goldstein had no further contact with his patient. On June 23, Geno 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 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 Victor Colello, not by Geno himself. Goldstein claimed Geno never revealed Keith’s surname to him. (See the 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 because the patient himself had not communicated the threat to the therapist; the father had. 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 court granted a summary judgment.
The Ewing’s Appeal
The Ewings made 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.”)
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 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 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 that 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.? Does the information have to be received via in-person or telephone communication? What about snail mail, email, fax, or voicemail? What if the psychotherapist does not have contact information in order to reach the relative who has made the report?
Most psychotherapists 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 to in other states, receiving outside information adds the element of a mandated Tarasoff report to a potential victim and to the police, where before Ewing v. Goldstein, psychotherapists used clinical judgment in such matters.
In California, the Ewing v. Goldstein appellate decision is now case law, and is therefore precedent. All therapists in California are to follow this new ruling. 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.
Northridge Hospital and its employees settled out of court.
HOWEVER: Keep your eye on Assembly Bill 733, which is being sponsored by both CAMFT and CPA, for clarification of Ewing v. Goldstein.
Experts and courtrooms continue to accept that psychologists CANNOT predict with any certainty who will be dangerous or when (for example see Bednar, R., Bednar, S., Lambert, M., & Waite, D., 1991; Otto, 1992). Indeed, the methods for assessing suicide are far more acceptable in court cases 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, Tarasoff/Ewing, and violence:
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 distinguish 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. Campbell, MD discussed some ideas for a revised SAD PERSONS scale eliminating the scoring system (Campbell, 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:
S….Sex
Once again, research suggested that male patients are more likely to act out dangerously to self and others.
A….Age
Was once given a value that it is not given today. 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.
D….Depression
Clinical depression increases suicide potential.
P….Prior History
As with assessment for violence, risk increases when there is a history of attempts.
E….Ethanol Abuse
Funnily, in 1983, the authors wanted to make the initials work, so 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.
R….Rational Thinking Loss
Potential psychosis: “A voice told me to kill myself…”
S….Support System Loss
Decreased support system indicates increased risk of suicide.
O….Organized Plan
As with violence assessment, this speaks for itself.
N….No Significant Other
Originally, this read “No Spouse” which is clearly outdated today.
S….Sickness
Has the person or a loved one recently been diagnosed with an illness or disease that has made him 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 for that answer, and so on. Then use the chart in decision-making, and consult and document as usual.
NOTE: Use caution in relying on the scoring system. For example, if the patient has a score of two points, but the points are male and organized plan, this is to be taken extremely seriously, rather than what zero to two points in the Patterson scoring system indicates.
|
SAD PERSONS ADULT SCORING SYSTEM |
|
|
0-2 points |
No real problems; keep watch |
|
3-4 points |
Send home but check frequently |
|
5-6 points |
Consider hospitalization invol or vol, depending upon your level of assurance patient will return for another session |
|
7-10 points |
Definitely hospitalize voluntarily or involuntarily |
The SPS (Patterson et al. 1983) was revised to assess the immediate suicide risk of adolescents and teens and to provide the evaluator with suggested interventions.
The Adapted-SAD PERSONS Scale (A-SPS) was therefore designed to be used by counselors working with children and youth and is an adaptation of the original SPS. Unlike the SPS, the adapted scale encourages a prompt and thorough child suicide risk factor assessment and gives suggested intervention guidelines for school counselors (Junke, 1996, p. 252).
The ASPS is an atheoretical scale used to assess immediate suicide risk factors and to provide general recommendations about interventions for those concerned about young person’s well being. It uses the acronym SAD PERSONS taken from Patterson et al’s suicide assessment which is founded on the twin literature, using suicide risk factors identified in the research.
S….Sex
Once again, research suggested that male patients are more likely to act out dangerously to self and others.
A….Age
Older adolescents seem to have significantly higher rates of suicide than do elementary school children (Hoberman & Garfinkel, 1988). Older adolescents are able to use more sophisticated and lethal methods and have greater access to such means. Students fifteen-years-old and older should be considered at greater risk.
D….Depression
There is a high correlation between suicide and clinical depression, according to Maris (1991).
P….Prior History
As with assessment for violence, risk increases when there are previous suicide attempts.
E….Ethanol Abuse
Many researchers have found a high correlation between alcohol or drug use and suicide. (Hoberman & Garfinkel (1988) reported approximately 28% of child and adolescent suicides had consumed alcohol within twelve hours before their suicide.
R….Rational Thinking Loss
Potential psychosis: “A voice told me to kill myself…”
S….Support System Loss
Isolation and impaired interpersonal contacts correlate with teen suicide.
O….Organized Plan
As with violence assessment, this speaks for itself.
N….Negligent Parenting (children or adolescents)
Significant family stressors, parental loss, abuse, neglect, family disruptions
S….School Problems (children or adolescents)
Being teased or hounded by other kids; taunting, ridicule, disciplinary problems; deterioration of academic performance
The following are Junke’s (1996) guidelines for interventions given the potential score received after conducting the ASPS These are merely guidelines and to be used given each practitioner’s clinical judgment on a case-by-case basis. Each client is a new and specific situation with mitigating circumstances to be taken into consideration. For more detailed information and further guidance, please see Junke’s original article.
TOTAL SCORE RANGE = 0 to 100
Clinician scores each risk factor between 0 and 10
0 = Complete Absence of Risk
10 = Significant Manifestation of Risk
Gender (Sex), being such a significant factor, is scored:
Male = 10 points
Female = 0 points
|
SAD PERSONS CHILDREN AND ADOLESCENT SCORING SYSTEM |
|
|
0-29 |
|
|
30-49 |
|
|
50-69 |
|
|
70 or more |
|
Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:
Students reporting organized suicide plans or having rational thinking loss warrant immediate intervention and must be monitored. Those who are clinically depressed and deemed to be using drugs must be given appropriate counseling services (Junke, 1996). Suicide is a real danger, which undoubtedly, the ASPS will not always identify. Clinicians must be ever alert to any and all signs of suicidality in both adults and minors and continue to consult and document appropriately.
Question 6
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, and get to his desk on time.
He tells you he won’t 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 belongings” and “doesn’t need much anymore.”
You know Danny has been a heavy pot user in the past and that, in high school, he 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.
Do a SAD PERSONS on Danny and add up the points. What did you get? What would you do?
NOTE: See Section B – SAD PERSONS for review of answer material below:
The best answer here is (c): 6 points for male, depressed, prior attempt, drugs, no support system, no significant other.
Question 7
What would you do to further protect Danny from harm without involuntarily hospitalizing him?
NOTE: See Section B – CC 43.92 a&b for Stromberg, et al — preventative steps and a review of answer material above.
ANSWER: The best answer to this question is (c) increase frequency of sessions, increase phone contact, send him for medication evaluation, increase his support system because the “rule of least restrictive treatment” requires the clinician take steps to prevent the client from harming him or herself while providing for care that is the least restraining as possible. Case law in the 1976 California Supreme Court Tarasoff decision made this a requirement as noted by Stromberg and his group of attorneys (1988). Thus, answers (a), (b), and (d) are too narrow and incomplete.
Bednar, R., Bednar, S., Lambert, M., & Waite, D. (1991). Psychotherapy with High-risk Clients: Legal and Professional Standards. Pacific Grove, CA: Brooks/Cole.
Campbell, W.H. (April, 2004). Current Psychiatry Online. www.currentpsychiatry.com
Cato Institute. (1776/2002). The Declaration of Independence and the Constitution of the United States. Washington, DC: Author.
Gardner, B. (Ed) (1996). Black’s Law Dictionary. St. Paul, Minn: West Publishing Co.
Hoberman, H., & Garfinkel, B. (1988). Completed suicide in children and adolescents. Journal of the American Academy of Child and Adolescent Psychiatry, 27(6), 689-695.
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.
Simon, R. (2001). Psychiatry and the Law. Washington, DC: American Psychiatric Press.
Stromberg, C. (et al.) (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.
Maris, R. (1991). Introduction. Assessment and prediction of suicide: A special issue of SLTB. Suicide & Life-Threatening Behavior, 21(1), 1-17.
Meyer, C. (1997). Expanding Tarasoff: protecting patients and the public by keeping subsequent caregivers informed. The Journal of Psychiatry & Law, fall, 365-375.
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: Te SAD PERSONS scale. Psychosomatics, 24, 343-349.
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…” (review General Principle A now).
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).
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
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 done research, written on, read the history of, speaks on, and/or teaches on the topic. 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. But by using the term specialist, the clinician is implying he has more knowledge in the area, 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 himself as a specialist” (Pelchat, 2001, p. 25),
As early as 1914, 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. Fridhandler, in the California Psychological Association Division I Expertise Series (2004), points out
The client or patient should have enough information to make a knowledgeable, informed choice about whether to proceed with the services offered by the psychologist. The psychologist may make a judgment about what information a specific client/patient is likely to find relevant in making this decision. Accordingly, it is appropriate to tailor the information to the client/patient’s particular needs and ability to understand. The psychologist should answer all client/patient questions relevant to the services being offered and their potential effect on him or her. (p. 1)
Fridhandler notes the psychologist must abide by the APA Ethics Codes, document that the client/patient was fully informed about services offered and rendered, and that informed consent rests upon the assumption that the client/patient has the ability to make such a decision whether or not to accept services. “Court decisions have established a legal consensus about additional aspects of informed consent” (Fridhandler, 2004, p. 2). Case law, says Fridhandler, has established that clients/patients must be told the risks, benefits, and alternatives of treatment, along with the fact that treatment is strictly voluntary.
There are two basic form of civil liability regarding informed consent according to Corey, Corey & Callanan:
Berner (1998) agrees with the APA (former 1992 Code 4.02 but not retained in 2002) when she discusses the elements necessary for informed consent to be viable.
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 HIPPA provisions being added recently (more on HIPPA 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?
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 the inability to give informed consent. It would not be a valid consent, as George did not have the current “capacity” to give a valid consent.
APA 4.02 Discussing the Limits of Confidentiality
The limits of confidentiality are:
This principle, in section (b) defines the actual limits of confidentiality as:
APA 10.01 Informed Consent to Therapy
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 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 the contents of patient records prior to HIPPA (Canter, Bennett, Jones, & Nagy, 1994; Bennett, Bryant, VandenBos, Greenwood, 1990; APA Monitor, Vol. 28, 1994). However, the basics remain the same:
Under Business & Professions Code 4982(v), 4992.3(s), “It is unprofessional conduct to fail to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered” (effective 1/1/00). California Health & Safety Code 123145 requires that certain entities retain patient records at least seven years after cessation of services or at least one year past majority. What this actually requires is that clinics, hospitals, and other entities mentioned in this law must keep the records of minors at least one year after majority (18 years old) and a minimum of seven years.
NEW CALIFORNIA LAW
Many states are in the process of updating laws regarding private practice record retention. California has been one of the states that have never had a statute for private practice record retention. The California legislature passed Assembly Bill 2257, which was recently signed into law; this is a records-retention law for psychologists, effective January 1, 2007. It states:
“A licensed psychologist must retain a patient’s health service records for a minimum of 7 years from the patient’s discharge date, and would also require a minor patient’s records to be retained for a minimum of 7 years from the date the patient reaches 18 years of age. Violation of the bill would be a crime…”
Up until this new legislation, there was no California law that dictated how long private practice clinicians were to retain patient records. Experts maintain that psychologists should follow the Specialty Guidelines for the Delivery of Services (1981) when there is no state statute that gives absolute guidelines to follow (Caudill & Pope, 1995; Stromberg et al., 1988; Bennett, 1990).
In other words, in states where there are no state laws for private practice record retention, psychologists are to follow the Specialty Guidelines of 1981, despite their old age!
Question 2
What does APA 4.02 have to say about when psychologists should get informed consent from a patient?
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), as in 4.02 section b despite the fact that “outset” is not clearly defined as a specific number of sessions in the Code.
There are many good treatment planners aiding 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) for detailed descriptions. All psychotherapy notes can be subpoenaed by court order. There is no such thing 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, Thompson (1990) notes, “Many therapists keep shadow notes containing personal speculations… the legal status of such records is largely undetermined” (p. 111). Psychologists must know case law 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 many psychologists are under the false belief that “process” notes are private and the property of the psychologist. This couldn’t be more untrue according to these attorneys (Stromberg et al (1988). However, in the terminology, “progress” and “process” notes are considered different. HIPPA now refers to “process” notes as “psychotherapy” notes.
|
PROCESS/PSYCHOTHERAPY NOTES |
PROGRESS NOTES |
|
Less for defending oneself More for documenting therapy relationship Follows one’s theoretical orientation based upon the research Thoughts, hunches, speculations |
Solid treatment plan documentation Especially in crisis situations Safety planning in event of crisis Public record of goals set & goals met Decision-making |
Question 3
Psychologists can keep their own personal thoughts about a patient in personal files at home. These are separate from “progress” notes.
NOTE: See Section C – Chart Notes for review of answer material below:
All record information is the property of the patient; there is no such thing as “shadow” records or keeping private records at home.
There are numerous courses both online and in person where psychologists can learn how to become HIPAA compliant. Here, the basics will be discussed in order to integrate record keeping into a discussion of HIPAA compliance.
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, but with regard to HIPAA, psychologists are instructed to follow whichever law most adequately and completely protects patient privacy more completely. Psychologists are required to study both federal and state laws that are applicable and decide which ones supersede the others. Fortunately, many available courses do this work for clinicians.
Electronic transmission refers to computer transmission of information and computer faxes, not telephone lines or freestanding fax machines. If you receive or send patient information via your computer, by a computer fax, or by email, you are required, under federal law, to be HIPAA compliant. If you use telephone lines for voice communication, free standing faxes, or snail mail to transmit patient information, then 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, 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 the billing agent guaranteeing it is, indeed, following HIPAA guidelines on your behalf.
HIPAA’s purpose is to “cut back” on paperwork by using primarily computer storage and transactions. Some experts say all psychologists will eventually have to be HIPAA compliant whether or not they make electronic transactions. Stay tuned!
|
HIPAA |
HIPAA |
|
Private notes of the psychologist not readily available to insurance company and patient |
Readily available to insurance company and patient |
|
Records must be separated into two different and distinct file folders |
Records must be separated into two different and distinct file folders |
|
Subpoenable |
Subpoenable |
|
Available by Court Order |
Available by Court Order |
Question 4
HIPAA refers to a group of federal laws that supersede state laws except when:
NOTE: See Section - HIPAA for review of answer material below:
As mentioned earlier, HIPAA are federal laws that nearly always supersede state laws. The exception is when state law gives more protection to the patient’s confidentiality rights. Thus, (c) is the best answer here.
California law and HIPAA federal law do not agree on patients having access to a copy of their own health records (August 1, 2006, personal communication, Michele Licht, Esq.). It seems that California law allows access to a copy of records within 15 days, while HIPAA allows a copy of records within 30 days from written request. Since these laws are all subject to change, please check with your attorney before acting. Once a psychologist has been given written notice, the therapist has reasonably discussed the purpose of the records request, and the psychologist believes, if the request is fulfilled, there will be no harm to the patient, the following must be followed:
CALIFORNIA LAW HIPPA REGULATION
|
Access to View Records |
H&SC 123110a – Within 5 days Within 5 days |
|
Access to Copy of Records |
H&SC 123110b – Within 15 days Within 30 days |
|
Denial of Access to Records |
H&SC 123115 |
|
Summary of Records |
H&SC 123130a |
In California, the psychologist “owns” the actual file, but the information in the file is the property of the patient (Benitez & Pelchat, 2006; Bennett, 1990). Thus, the patient may view or have a copy or summary of her records at the time of her choosing. The Health & Safety Codes of California do allow for the possibility of denial of access to the records if the psychologist can document good reasons why it would be destructive to the patient to view and/or have a copy of his records. However, the patient still has the right to appoint another mental health professional (see Health and Safety Code (H&S Code 123115) for details) to receive the records on the patient’s behalf. The therapist in receipt of records may discuss the records with the patient, but may not actually give or show them to the patient.
A summary of records (H&S Code 123130(a)), versus copying the entire file, is an option that is often suggested by the psychologist. 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 H&S Code 123130(b) and by Canter et al (1994):
(As we go along, please see applicable codes within APA 6)
APA 6.01 Documentation of Professional & Scientific Work & Maintenance of Records
The idea here is to:
APA 6.03 Withholding Records for Nonpayment
APA 6.06 Accuracy in Reports to Payors & Funding Sources
Question 5
How long must private practice records be retained in California and why?
NOTE: See Section C - Record Retention for review of answer material below:
Don’t forget that there are no California laws that dictate how long private practice patient records must be kept. Therefore, the APA Specialty Guidelines for Delivery of Services lend some guidelines psychologists are advised to follow.
APA. (1981). Specialty Guidelines for the Delivery of Services. Washington, DC: Author.
Bennett, B., Bryant, B., VandenBos, G., & Greenwood, A. (1990). Professional Liability and Risk Management. Washington, DC: APA.
Benitez, B. & Pelchat, Z. (2006). Recordkeeping. Compendium: A Collection of Articles Concerning the Legal & Ethical Obligations of CAMFT Licensees, Interns, & Trainees. San Diego: CAMFT.
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.
Campbell, C., & Gordon, M. (2003). Acknowledging the inevitable: Understanding multiple relationships in rural practice. Professional Psychology: Research & Practice, 34, 430-434.
Canter, M., Bennett, B., Jones, S., & Nagy, T. (1994). Ethics for psychologists: A commentary on the APA ethics code. Washington, DC: APA
Corey, G., Corey, M., & Callanan, P. (1998). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.
Fridhandler, B. (2004). Informed consent. Expertise Series: Division of Clinical and Professional Practice, CPA. Sacramento: CPA
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.
Johnson, S. (1997). Therapist’s Guide to Clinical Intervention. London: Academic Press.
Jongsma, A. (2001). The Adult Psychotherapy Progress Notes Planner. NY: Wiley
Pelchat, Z. (May/June, 2001). The standard of care: Definitions and examples. The California Therapist. San Diego: CAMFT.
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.
www.apa.org (HIPAA compliance instruction) .
Finances are often difficult for clinicians who would much rather be doing clinical work than discussing how much they are going to charge per session hour. 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 essential.
Stromberg et al (1988) suggest several basic principles to maximize effective billing and collection regardless of whether the client is utilizing an HMO or PPO insurance:
During a first evaluation, financial considerations should be discussed 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 as part of the intake process at the outset of treatment.
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 fail to see their unconscious underlying financial motives.
To avoid such practices, psychologists should pursue continued peer consultation along with continued use of decision-making methods used especially when one’s financial well-being is at stake.
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 other workers, often without the security of a company-paid retirement plan. Indeed, most private practice clinicians pay for their own medical and disability insurance, along with retirement planning, as do many self-employed individuals. Thus, the temptation to maintain a full-fee patient must not influence the decision to conduct a proper and timely termination when appropriate.
Principle B–Fidelity & Responsibility
APA 6.03 Withholding Records for Nonpayment
APA 6.04 Fees & Financial Arrangements
APA 6.06 Accuracy in Reports to Payors & Funding Sources
Never falsify! If something did not make it into the chart, simply chart it with the date it is being written, along with the notation that it actually occurred on another date. Never “fudge” the date or try to force something into the file that does not belong. It makes the entire record questionable and suspect, and possibly loses all credibility.
Below are various actions that are considered insurance fraud:
The six most important words in psychology are:
In legal proceedings and licensing violation proceedings, the defending psychologist is often asked if she obtained 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 and burnout, and to support a treatment plan with dangerous patients.
Why and when to seek consultation? (Clayton & Bongar, 1994)
Danger to self or other
Abuse issues
Cultural issues
AIDS/HIV
APA code 10.01(b) Informed Consent to Therapy
This code directs psychologists to get informed consent when using techniques that are still in development and have not been fully established
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.
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 cultures and ethnic groups.
Unfortunately, many psychologists fail to seek consultation due to lack of finances, and professional arrogance. Studies indicate that many psychologists fail to utilize consultation, which 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 Guthiel (1991) found “consultation together with documentation to be the ‘twin pillars of liability prevention’” (p. 201)
Question 1
When must a psychologist seek consultation?
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 in her 7-year-old son because the psychologist honestly thinks she can help the mom and the son to get along better. For this reason, she decided to single out the mom and bill the mom’s insurance company as if the mom is coming in for Generalized Anxiety Disorder without the son. This is an example of:
NOTE: See Section D – Insurance Fraud for review of answer material below:
Of course, the answer here is (a) because any type of collusion or form of lying to an insurance company is insurance fraud, despite the fact Dr. Jones wants to help her patient 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.
Question 3
When a psychologist is overly concerned with his finances versus helping the client, experts have termed this:
NOTE: See Section D – Fees & Financial Arrangements for review of answer material below:
Unconscious fiscal convenience is insidious especially because it is unconscious by definition. It is easy to get caught up in one’s own financial issues while overlooking what is best for the patient. This section discussed methods suggested to prevent unconscious fiscal convenience.
Applebaum, P., & Guthiel, T. (1991). Clinical Handbook of Psychiatry & Law. Baltimore: Williams & Wilkins.
Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: ethical, legal, and clinical considerations. Ethics & Behavior, 4, 43-57.
Cummings, N. (1995). Unconscious fiscal convenience. Psychotherapy in Private Practice, 14, 24-25, Pacific Grove, CA: Brooks/Cole.
Kapp, M. (1987). Interprofessional relationships in geriatrics: Ethical & legal considerations. Gerontologist, 27, 547-552.
Stromberg, C. (et al.) (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.
Welfel, E. (2002). Ethics in Counseling and Psychotherapy: Standards, Research & Emerging Issues.
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 patient. Fundamentally, CT is considered important because it can influence the therapy in a number of negative ways: premature termination, inappropriate therapist reactions, lack of therapist insight, and failure to properly treat the patient (Harmell, 1987). Thus, it is import 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 of 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 unidimensional 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:
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