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This is a beginning to intermediate level course. After completing this course, California social workers will be able to:
Thank you for deciding to take this course!
The material contained in this course is the author’s professional and personal understanding and 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 are accepted and published experts in the field of legal and ethical issues in psychology. Cited herein are current opinions, case law when applicable, California statute, and interpretations of the National Association of Social Workers (NASW) Code of Ethics, approved in 1996 and revised in 1999. When discussing situations that are strictly clinical or more pertinent to ethics codes related to clinical issues, the Clinical Social Work Federation (CSWF) Code of Ethics , approved in 1997 will be used in this course. You will find the website below for downloading or linking to both of these ethics codes.
Why There are Two Codes of Ethics
The NASW is designed for all social workers and uses the term “social worker” (SW) or “social workers” throughout the text. On the other hand, the CSWF is specifically designed for clinicians who are trained in the social work profession.
The terminology used in this document is “social worker” (SW), and “clinical social worker” (CSW) when there is an emphasis on clinical work. Other terms are psychotherapist and therapist.
Not a Legal Document
This course is IN NO WAY a legal document nor does it offer or replace legal advice. It provides no legal interpretations other than those of other experts as cited. When the author is giving expert opinion, she cites her own articles as references within the text. 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, expert, or professional consultant.
Since this applies to each section of the course, it will only be stated once here.
Good Luck and I hope you enjoy the journey!
The California Board of Behavioral Sciences (BBS) is the licensing board for Social Workers. The BBS is located at 400 R Street, Suite 3150 in Sacramento and is one of the boards overseen by the California Department of Consumer Affairs. The website is www.bbs.ca.gov and the phone number is (916) 445-4933. The mission of all licensing boards is protection of the consumers of the state and to establish and maintain standards for competent and ethical behavior of the professionals who are under the jurisdiction of that licensing board. The California BBS is responsible for the licensing of Licensed Clinical Social Workers and Licensed Marriage and Family Therapists.
In this course, you will be asked from time to time to take brief quizzes which are aimed at helping you learn and retain the material for the final evaluation of your learning retention at the conclusion of the course.
New material will be introduced with BOLD, ALL CAPS HEADINGS. You will find subheadings that are Bold but not all caps.
References for material will be given throughout the text, with a reference list at the end of each section.
How to Display or Print the Ethics Codes
To take this course you will need access to two ethics codes, one from the Clinical Social Work Federation (CSWF) and the other from the National Association of Social Work (NASW). The easiest way is to click here to view the CSWF code in a separate window and click here to view the NASW code in a separate window while taking this course. You may wish to print the codes or you may simply refer to the appropriate code window while reading the course material. Links to the codes are provided at appropriate times during the course, which will also bring up a separate window.
California has a long history of licensing Master’s Degree psychotherapists; in fact, California was the first state to register social workers when, in 1945, the “Board of Social Work Examiners” was formed. In 1963, this board was given the responsibility for administering the Marriage, Family, and Child Counselor Act. The act was renamed the Social Worker and Marriage Counselors Qualifications Board. In 1967 the Licensed Clinical Social Worker Program was established.
In 1970, a licensing program for Educational Psychologists was added and the Board then became known as the Board of Behavior Science Examiners. Finally, on January 1, 1997, the name was changed to the current name: The Board of Behavioral Sciences, clearly demonstrating the board does more than administer examinations for licensure.
California licensing boards are now requiring a six hour course in Professional Ethics and Law for every 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 followed each renewal period with a brief review along with updates and expansions to current standard of care and ethics. See California Code of Regulations 1887.3(d) that requires LCSWs to take six hours of law and ethics continuing education every two year renewal on the BBS website.
Business and Professions Code 4996, Practice of Social Work states:
Only individuals who have received a license… may style themselves as “Licensed Clinical Social Workers.” Every individual who styles himself or herself or who holds himself or herself out to be a licensed clinical social worker, or who uses any words or symbols indicating or tending to indicate that he or she is a licensed clinical social worker, without holding his or her license in good standing… is guilty of a misdemeanor. (Erikson & Conidaris, (2001, p. 491)
Business and Professions Code 4996.9 Definition of Clinical Social Work
The practice of clinical social work is defined as a service in which a special knowledge of social resources, human capabilities, and the part that unconscious motivation plays in determining behavior, is directed at helping people to achieve more adequate, satisfying, and productive social adjustments. The application of social work principles and methods includes, but is not restricted to, counseling and using applied psychotherapy of a non-medical nature with individuals, families, or groups; providing information and referral services; providing or arranging for the provision of social services; explaining or interpreting the psychosocial aspects in the situations of individuals, families, or groups; helping communities to organize, to provide, or to improve social or health services; or doing research related to social work. (Erikson & Conidaris, 2001, p. 494)
Scope of Practice and Scope of Competence
Many questions arise regarding the scope of practice of any clinician and what professional practices are within the purview of the license held by that particular clinician under their licensing law. The Scope of Competence is established by education, training and experience, while the Scope of Practice is determined by the laws that regulate one’s license and establish the duties of the professional holding the license.
Certainly one expands the scope of competence gradually, taking workshops, getting professional consultation, taking on new clients with varying diagnoses and issues as new skills are developed. However, scope of practice is a different matter. Scope of practice is a legal and ethical matter with regard to what the licensed social worker is trained, educated and prepared to do within the profession and what makes the SW different from a psychologist or an MFT. In other words, what are the duties under the law, and what are the limitations.
Working outside one’s competence AND one’s scope of practice are both violations of law and the Ethics Codes (to be discussed later). LCSWs often have private practices, and work in clinics and hospitals. The license allows care-giving of many sorts by LCSWs as long as the caregiver has the training, education and experience to document the work being done.
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:
If you guessed (c), you are correct! With 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. You may wish to record your answer for future review!
The National Association of Social Workers (NASW)
The national version of the ethics code (NASW) was approved by the delegate assembly in 1996. It is intended to serve as a guide to social workers who may or may not be clinical social workers for everyday professional conduct. It has four sections, the last of which includes 51 specific numbered standards that will be the focus of this course along with the Code of Ethics of the Clinical Social Work Federation (CSWF) for clinicians.
The chart that follows displays the four major sections in more detail:
|
NASW SERVES AS GUIDE |
FOUR SECTIONS |
|
PREAMBLE |
Summarizes mission & core values |
|
PURPOSE OF NASW CODE |
Overview of functions of code |
|
ETHICAL PRINCIPLES |
6 Specific core values to be followed |
|
ETHICAL STANDARDS (51) |
6 Major numbered code sections |
|
ETHICAL STANDARDS |
DESCRIPTION |
|
1. Social Workers’ Ethical Responsibilities to Clients |
16 Standards covering everything from informed consent to sexual exploitation |
|
2. Social Workers’ Ethical Responsibilities to Colleagues |
11 Standards covering everything from confidentiality to incompetence |
|
3. Social Workers’ Ethical Responsibilities in Private Practice |
10 Standards covering everything from supervision to record-keeping |
|
4. Social Workers’ Ethical Responsibilities as Professionals |
8 Standards covering everything from competence to soliciting patients |
|
5. Social Workers’ Ethical Responsibilities to the SW Profession |
2 Standards covering integrity of profession and evaluation of research |
|
6. Social Workers’ Ethical Responsibilities to the Broader Society |
4 Standards covering public emergencies to political action |
The Clinical Social Work Federation (CSWF)
In the Preamble of this document, CSWF states:
The objective of the profession of clinical social work is the enhancement of the mental health and the well-being of the individuals and families who seek services from its practitioners. The professional practice of clinical social workers is shaped by ethical principles, which are rooted in the basic values of the social work profession. These core values include a commitment to the dignity, well-being, and self-determination of the individual; a commitment to professional practice characterized by competence and integrity; and a commitment to a society that offers opportunities to all its members in a just and nondiscriminatory manner. (CSWF, 1997, P. 1)
The Code of Ethics of the CSWF is specific to clinical social work and will be quoted when relevant in this course. The chart below describes the contents of the CSWF Code of Ethics:
|
CLINICAL SOCIAL WORK FEDERATION |
DESCRIPTION |
|
PREAMBLE |
Explanation of objective of social work |
|
I. General Responsibilities of Clinical Social Workers |
A-D CSWs maintain high standards |
|
II. Responsibility to Clients |
1. Informed Consent to Treatment |
|
III. Confidentiality |
A-E CSWs maintain confidentiality |
|
IV. Relationship with Colleagues |
A-E CSWs act with integrity |
|
V. Fee Arrangements |
A-E CSWs maintain honesty re fees |
|
VI. CSW Are Responsible to the Community |
A-C CSWs practice their profession within legal boundaries |
|
VII. Research & Scholarly Activities |
A-K CSWs maintain ethical practices in research and teaching |
|
VIII. Public Statements |
A-E Public statements are always honest and truthful |
The purposes of an ethics code for psychotherapists are many-facetted, including establishing the integrity of the profession, provision of a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and the ethics committee’s ability to adjudicate (to act as judge when another social worker violates an ethics code).
There are five important reasons for having an ethics code in any profession
In other words, LCSWs, without an ethics code, 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 (judge ethical violations) when those standards are not applicable to LCSWs.
Question 2
The NASW and CSWF ethics codes are legal documents:
Question 3
Social workers can only work in hospitals or clinics and not in private practice settings:
NOTE: See Section A – Introduction to Social Work Ethics Code for review of answer material below:
Question two of course is false (b), as mentioned earlier, the document is NOT to be used as a legal document, but as a guideline and set of standards.
Question three answer is false (b) as explained earlier as well.
There are four elements of a malpractice suit and all four have to be believed to be met by an attorney in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, get reflected in out of court settlements.
A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether or not the psychotherapist has breached the standard of care (Black’s Law Dictionary, 1996). (We will define standard of care below.)
Duty of Care: A Duty of Care arises when there has been an agreement between the psychotherapist 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 begins to develop an assumption he or she 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 whether or not they wish to work together by the third session or so, the court may decide for them if a civil suit should occur that a “duty” of care has been established. Exchange of money alone does not establish a duty; 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 refers to the level of proficiency against which
any other psychotherapist’s work will be measured or compared. In other
words, what any other trained psychotherapist would do with reasonable experience
or the minimum below which a psychotherapist must not fall (Stromberg, et al.,
1988; Caudill & Pope, 1994).
Generally, the standard of care is defined by state statute (i.e., 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 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 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 their damages? The idea is to return a harmed individual to the condition in which they 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 psychotherapist 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 psychotherapist’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 psychotherapist for their acts that “caused” the damage to the client. The question is: would the client have been damaged if the psychotherapist had done anything differently? Where injury is alleged to have occurred the client must still prove that the alleged injury is caused by the psychotherapist’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 seen Therapist Brown as a client for five months. She calls Therapist Brown saying she is suicidal and wants to “do herself in.” Therapist 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 in a suicide attempt along with a bottle of vodka. When she calls Therapist 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 Therapist Brown had been seeing each other in a therapeutic relationship the first element of a malpractice suit has been met because there was:
Question 5
Therapist Brown was probably not adhering to the current Code of Ethics for LCSWs, the statutes of his state, nor the recent case law. Therefore he probably:
Question 6
Since Jenny wound up in the hospital after talking with Therapist Brown, this probably is evidence of:
Question 7
If Jenny would have been fine if her psychotherapist Brown had treated her in a more appropriate manner, this could be used as proof of:
Questions 4-7 in order: Question (4) answer is (a) - duty of care gets established when a client-therapist relationship is developed or created. Question 5 - When Therapist Brown failed to follow the ethics code of his profession, he was (b) - breaching the standard of care of his profession. Question 6 answer is (c) - demonstrable harm. Since his patient wound up in the hospital, harm was able to be demonstrated. If it could be proven (very difficult to do) that the patient would not have suffered damages (or they would not have been as serious), had Therapist Brown done anything differently, then for question 7 the answer is (d) - proximate cause can be claimed by the attorney of the patient.
Experts in legal and ethical matters agree on methods of minimizing the risk of a malpractice suit (Caudill & Pope, 1995; Welfel, 2002; Clayton & Bongar, 1994; Cranston et al., 1988).
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 an LCSW. These “five always” are as follows: We could use the shortcut CCARQ.
C....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 psychotherapist’s office is of a diverse culture from the psychotherapist no matter who they are. In other words, the psychotherapist must consider the differences between the two individuals in every case because every person walking into a psychotherapist’s office is of a different culture than the psychotherapist. 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. Psychotherapists should never make assumptions about a client’s culture, cultural sensitivities, nor a client’s family.
C....Counter-transference
This means that every client must be considered for the possible impact he or she has or may have on the psychotherapist. The psychotherapist 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 (i.e., premature termination, inappropriate behavior by the psychotherapist).
A....Area of Competence
All psychotherapists should be able to handle all the diagnoses in the DSM – which is not realistic! What this actually means is that psychotherapists must be able to identify their limitations – when they should refer a client due to lack of training, counter-transference, or inexperience. In actuality, psychotherapists 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.
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, 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 psychotherapist 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) (Harmell, 1999).
Q....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.
There are four mechanisms holding LCSWs accountable for actions as mental health professionals. A brief description of each follows:
A state licensing board is the agency that “giveth and taketh away” the ability to practice marriage and family therapy! 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 psychotherapist fails to respond to its dictates.
There are two possible ethics committees that regulate LCSWs: as discussed earlier in this course, these are the Clinical Social Work Federation, and the National Association of Social Work. Each have separate and distinct Codes of Ethics to which social workers must adhere.
Mechanism Three is a generally unpleasant factor of American society in many cases – 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 psychotherapist does not want to be confronted by this element of accountability, as it is generally grindingly slow and complex not to mention painfully expensive.
Criminal allegations are the least likely of the four mechanisms holding a LCSW accountable for practice behavior. If there is an unfortunate outcome where the attorney general goes after a LCSW’s license and prosecutes for criminal allegations, the psychotherapist can find him or herself spending time in a jail cell if found guilty.
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. 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.
Clinical Social Work Federation. (1997). Code of Ethics. Arlington,VA:CSWF
Erikson, J., & Conidaris, M (2001). California Laws for Psychotherapists. LA: Legal Books Distributing.
Harmell, P.H. (1999, Jan-Feb). Focus on Axis III: General medical conditions. The Los Angeles Psychologist.
Lee, C., & Richardson, B. (1992). Multicultural Issues in Counseling: New Approaches to Diversity. Alexandria, VA: American Counseling Associates.
National Association of Social Work. (1999). Code of Ethics. www.socialworkers.org/pubs/code/code.asp
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 4th Amendment of the Bill of Rights (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). It is the most basic of the three terms (Cato Institute, 1776/2002).
Confidentiality is an ethical term which denotes a contract between the patient and the psychotherapist where the psychotherapist promises to keep all utterances confidential communications, except those required disclosures 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 release of confidential patient material (records or testimony) in legal proceedings such as subpoenas for records or testimony.
Evidence Code 1013 defines “Holder of Privilege” as (see website for actual laws - http://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 and 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 release of legal documents. Even though a subpoena does not have the power of a court order, 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. 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.
Standard 1.07(a-r) – Privacy and Confidentiality
Since this is such a long code with eighteen sections, it is incumbent upon each individual social worker to take the time to review this standard him or herself. However, a brief summary is given below.
CSWF Code of Ethics
Standard III(b,c,e) - Confidentiality
(b) Mandatory reporting obligations may include, but are not limited to; the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); and, any duty to report the misconduct or impairment of another professional.
In specific relation to California Law: This confidentiality standard relates to disclosures that are (1) mandated by law (child, elder, dependent abuse, danger to self or other, gravely disabled), (b) permitted by law (suicidality), (c) when the psychotherapist becomes a defendant in a legal suit, or (d) when the patient gives previous authorization. California law with regard to mandated or permitted to breach (such as child abuse, the suicidal or dangerous patient, or other abuses that come to the attention of the therapist) will be discussed in later sections.
(c) If a subpoena requests or a court order demands testimony or records in a situation where the psychotherapist is seeing more than one person at a time, this Standard suggests all members of the family or couple must agree and sign releases before the clinical social worker will release the records. This is excellent in ethical theory, but the legal requirements may force a different decision (to be discussed in a later section).
(e) CSWs are cognizant of the hazards of technological changes and make reasonable attempts to maintain confidentiality when transmitting and receiving information via electronic means. Storing, transferring, and disposing of records is done properly and with the utmost respect to patient confidentiality.
After going through the legislative process, a law is given a number such as Evidence Code 1024 or Penal Code 11166. Once codified in this manner, psychotherapists 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 within the state of its legislation as is statute and is considered precedent. This is relevant here as Tarasoff began in California as case law.
In 1976, the California Supreme Court Justices made some important rulings that changed the responsibilities for all mental health professionals forever. Prior to the Tarasoff decision, Evidence Code 1012 required psychotherapists to keep all utterances confidential and Evidence Code 1024 required psychotherapists to disclose to a potential victim possible threats made against that person to the psychotherapist. Evidence Code 1024 further suggested psychotherapists disclose possible danger to property or danger to self (suicidal activity).
However, when Prosinjit Podder, a young man from India, fell hopelessly and madly in love with Tatiana Tarasoff, and later became outraged with dissatisfaction when her level of commitment to the relationship did not meet his own, he eventually murdered her after confessing his desire to cause her bodily harm to his psychologist at Cowell Memorial Hospital, an outpatient clinic serving UC Berkeley. (See Harmell, 1997, The Stab Felt Round the World: What you Need to Know about Tarasoff for a detailed review)
The California Appellate court made a new interpretation of Tarasoff in 2004, which will be discussed later. For now, it is important to understand what the original ruling by the Supreme Court Justices ruled in order to understand the new interpretation of 2004.
This famous Supreme Court case law ruling in California (1976) was later codified in 1985 as follows:
PRE 2004 EWING V. GOLDSTEIN DECISION INTERPRETATION
Communicated to psychotherapist directly by patient
Serious threat of physical harm which 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 – TRADITIONAL MORE LIMITED INTERPRETATION OF TARASOFF
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 UNDER THE OLD INTERPRETATION. Tarasoff dictated UP UNTIL RECENTLY you be told the threat against the identifiable victim directly from your dangerous patient. Here, the roommate told you.
Obviously this is an ethical situation in any event where you would instruct the caller how to proceed to help save the life of the fry cook (i.e., 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.
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 and had overdosed on her oral meds previously, tried to hang herself, and enlisted other methods of attempting suicide.
Her physician at USC 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 in an attempt to enter the program despite her psychiatrist’s protestations, the eating disorders physician contacted the USC treating and prescribing physician who failed to inform him of her severe suicidal behavior despite his extreme objection to her appropriateness for the eating disorders program; thus she was admitted into the eating disorders program as an inpatient.
Unfortunately she sneaked in prolixin tabs she had been hoarding and quickly overdosed (her mother failed to confiscate the oral prolixin which she took to Northridge with her). After 5 weeks in a coma, she was left with permanent brain damage. Mother sued Northridge who 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 all psychotherapists in general 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.
In Bellah, a California psychiatrist concluded 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 at which time 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 psychotherapist’s patient, not the patient him or herself. 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 A CASE, not because the court decided in its deliberations not to extend the Tarasoff decision to suicide.
What does this mean to LCSWs? 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.
Well-trained psychotherapists 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. As of now, the safest approach is to consult with one’s insurance carrier’s legal department, and/or one’s personal professional attorney, then document the consultation.
In sum, Meyer reports that the Bellah court, in 1978, 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 4
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 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; thus the third answer (c) is inappropriate. The last answer (d) is a subset of the first answer, thus the first (a) is a more inclusive answer.
New Addition to Tarasoff in California
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 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, which 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. 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, 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 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, 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 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 the evening of June 21 and 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 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. Goldstein had no further contact with his patient. On June 23, 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 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 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 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 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 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 or her 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 psychotherapist does not have contact information in order to contact the relative who has made contact?
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 be 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 these areas.
In California, the Ewing v. Goldstein appellate decision is now case law, which 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.
The following are excerpts from the California Legislative Website:
Assembly Bill 733 became law January 1, 2007. It clarifies the existing statute by specifying the two steps psychotherapists may take to discharge their duty to a potential victim when the psychotherapist’s patient communicated a serious threat of serious violence to the psychotherapist. These two steps are:
According to the actual Bill, a psychotherapist may discharge their duty under case law by taking other reasonable steps. Existing case law provides that generally “one person owes no duty to control the conduct of another nor to warn those endangered by such conduct. Courts have carved out an exception to that rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct [Tarasoff v. Regents of University of Ca. (1976) 17 Cal. 3d 425, 435.]
Existing law (Civil Code 43.92) states that psychotherapists have a duty to warn and protect when the “patient himself or herself communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”
Existing case law includes communications directly from the patient and the “patient’s immediate family [when the communication] is shared for the purpose of facilitation and furthering the patient’s treatment.” [Ewing v. Goldstein (2004) 120 Cal. App. 4th. 807, 817.)]
Existing law states that the psychotherapist’s duty to warn and protect shall be discharged by making reasonable efforts to communicate the threat to the victim and to a law enforcement agency.
This bill restates that reasonable efforts to communicate the threat to the victim and a law enforcement agency discharges a psychotherapist’s duty to warn and protect. By implication, the corollary effect would be to reiterate that under Tarasoff there are alternate methods for discharging a psychotherapist’s duty once it arises.
By “alternative” methods, the original Tarasoff court referred to “taking steps” to prevent the threatened danger to the potential victim. For example, increases frequency of sessions, contract with the dangerous patient, send for medication management, anger management, involve the support system, and other means of calming the situation. However, the justices DID NOT state what these methods might be, standard of care has been suggested throughout the years. In situations where the public may be in danger, it is best to consult, consult, consult and document the consultation.
The fascinating thing about case law is judges love to be legislators! They like to make law, not just make rulings on law. The interest here with case law is not to assign blame to any psychotherapist for making an “error”, but to see what the judge did that somehow added to the standing law at the time 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, which he eventually acted upon 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 psychotherapists (along with protecting 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 call a 3-year old child with a Tarasoff warning, the court felt it was reasonable that a child that young would have been with his mother when the threat could have been carried out. Therefore, in subsequent similar cases, foreseeable bystanders are owed a Tarasoff duty. Once again, we are to use the “reasonable psychotherapist” standard of care: What would a reasonable psychotherapist do given 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 a portion of the farm that was uninhabited. The court disagreed with the psychologist and ruled in favor of the father that he should have been given a Tarasoff warning of the danger.
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 psychotherapists 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 the girlfriend of a veteran was murdered by a man being treated as an outpatient at a local VA. The precedent set here is the judge ruled that, in settings where it is possible, psychotherapists are required to attempt to seek the past therapy records of present patients they are treating who are currently dangerous to others.
Basically, in the patient’s previous VA treatment records, it was noted he threatened his former wife with bodily harm prior to actually murdering the current girlfriend in the case at bar. From this precedent, hereafter, psychotherapists must either seek former records when treating dangerous patients or document attempts to do so.
Difference Between Tarasoff, Homicide, and Suicide
Tarasoff / Ewing
Despite the update to Tarasoff added by the Ewing (2004) ruling, psychotherapists have a duty to warn and protect only in one circumstance as seen in the chart below. When the psychotherapist receives all three of the requirements of the Tarasoff decision, he or she is mandated to warn the victim(s), notify authorities, and take steps to protect the public. Additionally, it would behoove the psychotherapist to receive and document a legal consultation should the communication of the threat come from “an immediate family member” (Ewing, 2004) rather than directly from the patient him or herself (Tarasoff, 1976).
Homicide
When the psychotherapist has reason to be concerned that a patient is becoming dangerous to the public, yet the three requirements of Tarasoff / Ewing are NOT apparent, then Tarasoff or Ewing does NOT exist. Therefore, the psychotherapist has a duty to take reasonable steps to protect the public rather than to warn the victim(s) and notify authorities (Tarasoff, 1976).
Suicide
Meyer (1997) makes a strong case for the application of the Tarasoff principles to a suicidal patient as discussed in detail in this section; however, this idea does not seem to have taken hold in California to date. It seems that in the case of a suicidal patient, the duty seems to rely upon good psychotherapist judgment along with the zeitgeist of the time. Once again, the psychotherapist is always responsible for protection of the patient. One of the steps that remains the gold standard of care is a professional consultation.
|
TARASOFF |
HOMICIDE |
SUICIDE |
|
Mandated to breach confidentiality |
Permitted to breach confidentiality |
Permitted OR mandated to breach (Meyer) confidentiality |
|
- Warn victim(s) - notify authorities |
||
|
Mandated to take steps to prevent threatened danger |
Mandated to take steps to prevent threatened danger |
Mandated to take steps to prevent threatened danger |
In general, the typical breaches of confidentiality that are mandated are:
Tarasoff / Ewing
In general, the typical breaches of confidentiality that are permitted are:
NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:
Question 5
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 brother is identifiable. New Year’s Eve is NOT imminent danger.
Experts and courts accept that psychotherapists 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 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:
According to experts, psychotherapists must inform patients that they have an ethical and legal obligation to break confidentiality when and if they have a good, solid reason to suspect suicidal ideation or behavior is taking place or about to take place in the near future (Corey, Corey & Callanan, 2007). Not every mention of suicidal thoughts or feelings justifies taking extraordinary steps such as breaching confidentiality, however.
Remley and Herlihy (2005) look at the two sides of the question in their discussion of the psychotherapist’s need to make “life and death” decisions while neglecting to take action when necessary. Psychotherapists do not have to make correct judgments at all times; they do have to use appropriate risk assessment techniques comparable to what another reasonable professional would do in a similar situation. Here is when the clinician should remember to consult and document (Remley & Herlihy, 2005).
American Association of Suicidology
4201 Connecticut Ave. NW
Washington, DC 20008
202-237-2280
Below is a thorough discussion of an accepted and notable suicide assessment tool. However, the following are guidelines for assessing suicidal behavior that can help the clinician recognize the existence of various common crises that precipitate a suicide attempt. Several researchers have added to the factors that should be considered when making an assessment (Capuzzi, 2002; Capuzzi & Gross, 2000; Remley, 2004; Wubbolding, 2006).
In an assessment interview, especially focus on evaluating depression, suicide ideation, suicide intention, and suicide plans. In crisis counseling, assess your clients for suicidal risk during the early phase of therapy, and keep alert to this issue during the course of therapy. Danger signs, such as those listed here, should be evaluated:
Experts and courtrooms continue to accept that psychotherapists 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, psychotherapists 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 psychotherapist 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.
Standard 1.07(e) – Privacy & Confidentiality
SW should review with clients circumstances where disclosure of confidential information may be legally required.
CSWF Code of Ethics
Standard III(b) – Confidentiality
Exception to confidentiality will occur when there are overriding legal or professional reasons and, whenever possible, with the written informed consent of the client or clients.
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.
Campbell, W.H. (April, 2004). Current Psychiatry Online. http://www.currentpsychiatry.com/
Capuzzi, D. (2002). Legal and ethical challenges in counseling suicidal students. Professional school Counseling, 6,36-45.
Capuzzi, D., & Gross, D. (2000). Youth at risk: A prevention resource for counselors, teachers, and parents (3rd ed.). Alexandria, VA: American Counseling Association.
Cato Institute. (1776/2002). The Declaration of Independence and the Constitution of the United States. Washington, DC: Author.
Corey, G., Corey, M., & Callanan, P. (1998). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.
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.
Harmell, P. H. (1997, Mar-Apr). The stab felt round the world: What you need to know about Tarasoff. The California Psychologist.
Harmell, P.H. (1997, Sept-Oct). When is it legal and ethical to breach a patient’s confidentiality? The Los Angeles Psychologist.
Juhnke, GE (1994). SAD PERSONS scale review. Measurement & Evaluation in Counseling & Development, 27, 325-328.
Juhnke, GE (1996). The adapted SAD PERSONS: An assessment scale designed for use with children. Elementary School Guidance and Counseling, 30, 252-258.
Remley, T. (2004). Suicide and the law. In D. Capuzzi (Ed.) Suicide across the life span: Implications for counselors (pp. 185-210). Alexandria, VA: American Counseling Association.
Remley, T. & Herlihy, B. (2005). Ethical, legal, and professional issues in counseling (2nd ed.). Upper Saddle River, NJ: Merrill/Prentice-Hall.
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: The SAD PERSONS scale. Psychosomatics, 24, 343-349.
Wubbolding, R. (2006). Case study: A suicidal teenager. In B. Herlihy & G. Corey (Eds.), ACA ethical principles standards casebook (6th ed.). Alexandria, VA: American Counseling Association.
There is no question that the primary concern of all psychotherapists is patient welfare. However, in order to maintain psychotherapist welfare, 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, subsequent improper termination, or improperly establishing a duty of care (See Section A for details on Duty of Care).
Elements to consider are as follows:
Definition of Terms:
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 on the topic. Thus, most psychotherapists are specialists in some areas (children, ADHD, depression, etc.), but may not reach the level of an expert.
Experts Define “Specialist”
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 inferring 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),
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 psychotherapist after being informed of office policies, for example, treatment methods, and limits of confidentiality.
Limits of Confidentiality and Privilege
To review, confidentiality is an ethics term referring to the contract between the patient and psychotherapist where the psychotherapist “promises” to keep all communications private except under certain legally and ethically defined situations. Privilege refers to
There are two basic forms of civil liability regarding informed consent according to Corey, Corey & Callanan (1998):
Berner (1998) notes the elements required for informed consent:
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 WRITTEN forms that cover these issues, especially with HIPPA provisions being added recently (more 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?
Question 2
Therapist Jones is trying to collect a fee from a “patient” who made an appointment but never came to the particular session and never gave a 24-hour cancellation, bur refuses to pay for Therapist Jones time. The patient complains that the therapist failed to put this cancellation policy on his informed consent form so that the patient had no idea there was a 24-hour cancellation policy. If there is a liability suit, which type of informed consent liability is involved?
NOTE: See Section C – Informed Consent AKA Consent for Treatment for review of answer material below:
Of course, the (c) is the correct answer for Question 1. 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. For Question 2, the answer is (a) as discussed in Section C.
NASW Code of Ethics
Standard 1.03(a-f) - Informed Consent
(a) SWs should use clear and concise language that can be understood by the patient. The patient should be told about the purpose of the services, risks related to the services, limits to the services, problems with third party payers, problems with costs of treatment, reasonable alternative treatment options, and the fact that treatment is purely voluntary for the patient.
(b) When patients are not literate or have difficulty understanding the primary language used in the practice setting, the SW takes steps to ensure comprehension. Arranging for a qualified translator or interpreter whenever possible, without breaching confidentiality, is an option.
(c) When the patient is unable to give consent, the SW seeks permission from an appropriate third party without breaching confidentiality.
(d) When the patient is not receiving services voluntarily, the SW gives as much information as possible.
(e) SWs who give services over the Internet must inform recipients of the limitations and risks.
(f) SWs must obtain patients’ informed consent prior to audio-taping or videotaping clients or permitting observation of services to patients by a third party.
CSWF Code of Ethics
Standard II - Responsibility to Clients
1. Informed Consent (a-b)
(a) Clinical social work takes place within a context of informed consent. Patients must be informed of the extent and nature of the services being offered, the mutual limits of service, rights, opportunities, and obligations associated with the provision of and payment for those services.
In order for consent to be valid, it must be informed clearly, must be chosen freely, and without undue influence, and the patient must have the capacity to give consent freely. The language of the consent form or verbal formal must be given in a way that is understandable to the person receiving the information.
(b) CSWs have a duty to be aware of the impact and potential impact of all third party payment arrangements and the CSW must discuss these fully with the patient along with alternative treatment options.
Psychotherapists are constantly confronted with ethical dilemmas in accepting or declining newly referred patients from both colleagues and from current and past patients. There are a number of issues that must be considered including counter-transference, finances, multiple relationships, rural or large town settings, confidentiality and other boundary issues.
In considering new referrals, psychotherapists must be vigilant about patient welfare along with their own need to earn a living, especially in this era of managed care. All efforts must be taken to avoid undue influences of bias in the psychotherapist in order for the therapist to remain neutral and effective (Shapiro & Ginzberg, 2003).
Every referral for treatment requires a decision-making process, some more than others. Some of the initial issues regarding referrals include:
Referrals From Current and Past Patients
Accepting or declining referrals from current or former patients involves three primary potential ethical conflicts for the psychotherapist:
Despite the ethical difficulties involved with accepting referrals from current and former patients, there is no set standard of care for this process; thus the psychotherapist is left to fend for him or herself. Several years ago, Epstein and Simon (1990) expressed the more rigid psychoanalytic view that taking a referral from any patient is an example of exploitation in that the therapist is then receiving financial compensation (a “gift” in their words) in the form of a new patient along with either a current fee from the referring patient or having received a past fee from the referring patient.
Since gifts are generally kept out of the therapeutic relationship, should there be a strong case for a referral being a gift, it could be considered a multiple relationship, according to some authors (Shapiro & Ginzberg, 2002). “We must attend to the meaning of a referral as a gift and beware of the possibility of becoming indebted to our patients” (Shapiro & Ginzberg, 2003, p. 259). These authors state:
It is our position that when a patient makes a referral that is likely to impinge on his or her treatment (e.g., spouse, family member, sexual partner, close friend, coworker, or roommate), it is in the patient’s best interest for the therapist to decline. (Shapiro & Ginzberg, 2003, p. 259)
Once again, there is absolutely nothing unethical or illegal in treating people who know each other, or are in the same family as long as the treater has the proper training, education, and experience. What this means is that if one plans to see both parties of a couple, the psychotherapist must have the training and ability to handle this type of arrangement. If a psychotherapist does not have such training or does not have the personality that can tolerate such confidentiality complexities, then one must either refer or receive consistent consultation until skill is achieved. It is always appropriate to “check in” with a patient to see if they are opposed or not to you treating the referral as long as it would not be a breach of confidentiality to either party. In reality, this issue has been the subject of a number of complaints to licensing boards and ethics committees when mishandled by psychotherapists.
Once a Patient, Always a Patient?
Psychotherapists retain their professional capacity with a patient far beyond the actual conclusion of treatment. What if the former patient decides to return to therapy after the new referral has begun treatment with the psychotherapist? This is an important consideration in deciding whether or not to accept the referral from a patient or to decline. Experts suggest therapists always try to consider the likelihood of the original patient returning to therapy in the future. What would
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