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This is a beginning to intermediate level course. After completing this course, Florida psychologists will be able to:
Thank you for deciding to take this course!
The material contained in this course is the professional and personal understanding of the course author’s interpretation of the experts that have been cited throughout the text. Should any person wish to use this material for any purpose other than basic continuing education as it is presented here, that person should seek the original sources for his or her personal understanding.
The authors cited are accepted and published experts in the field of legal and ethical issues in psychology. Cited herein are current opinions, case law when applicable, Florida statute, and interpretations of the new APA Ethics Code, especially the fine work of Celia B. Fisher, Ph.D., Chair of the APA Ethics Code Task Force, that completed the current revision (Fisher, 2003). For those readers interested in viewing the actual Florida statutes, you are referred to the following website: http://www.flsenate.gov/.
This is in NO WAY a legal document nor does it offer legal advice or legal interpretations other than those of other 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.
Since this applies to each section of the course, it will only be stated once in this beginning section.
Good Luck—I hope you enjoy the journey!
The Florida Board of Psychology now requires a course in Professional Ethics for every two-year renewal of license. Since this is not a one-time requirement, this course will be a fundamental or basics course followed each renewal period with a brief basics review, and updates and expansions to current standard of care and ethics.
From time to time, throughout the course, you will be asked to take brief quizzes that are aimed at helping you learn and retain the material for the final evaluation of your learning at the conclusion of the course.
When instructed you may use the links provided to review the specific APA Ethics Code for answers to the quiz questions; otherwise, you may want to print out the Ethics Code now from the APA website: Principles of Psychologists & Code of Conduct (APA, 2002).
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?
If you guessed (d), 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 complete title of the document is Principles of Psychologists & Code of Conduct (APA, 2002). The need for an ethics code arose after World War II when psychologists developed group tests to help the armed services quickly evaluate draft eligibility and to provide mental health services to returning soldiers. After numerous task force revisions and drafts approval by the membership, the first code was adopted by the APA in 1952, and published in 1953.
The purposes of the current ethics code are many, including 1) establishing the integrity of the profession, 2) provision of a guide for proper and expectable professional behavior, 3) securing public trust, 4) self-monitoring, and 5) the ability to adjudicate (APA, 2002; Please see Fisher, 2003 for most recent interpretation of 2002 code). By adjudicate, the APA means to have the power to settle an ethics violation judicially by the ethics committee of the American Psychological Association.
There are five important reasons for having an ethics code:
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 inappropriate standards to adjudicate ethics violations when those standards are not applicable to psychologists. It is always more appropriate for those within the profession to make decisions about fellow psychologists who violate the ethics of the profession rather than outside parties who are less familiar with the profession.
The current code was adopted in 2002 and took effect in June 2003. We will use the current code in this course.
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 (for example, Georgia adopted the 1992 code as a legal document), the creators did not have this in mind when they wrote it. The Ethics Code looks at “reasonable” prevailing current judgment and considers the dictates of one’s own conscience while strongly encouraging professional consultation with colleagues.
The Preamble section discusses psychologists’ commitment to science in the improvement of the lives of others. Psychologists have a lifelong commitment to act ethically. The Preamble sets the stage and prepares the reader for the General Principles that follow.
The General Principles A through E guide and inspire psychologists to act with the very highest ideals while considering patient welfare as their primary concern at all times.
The 82 numbered standards are the only enforceable part of the Ethics Code. It may seem to the casual observer that these standards are “nitpicky” or even extreme. However, every code has its basis in either an actual complaint or serious concern directed to the APA ethics committee. These standards can be used by any state or APA ethics committee adjudication proceedings, and have often and routinely been used in malpractice suits and licensing board violation adjudication cases. Malpractice attorneys use the numbered enforceable standards as the “standard of care” of the profession (to be discussed later).
Question 2
The APA Code of Ethics is a legal document:
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:
Question 2 is (b) false. The document is NOT to be used as a legal document, but as a guideline and set of standards to follow for psychologists.
Question 3’s answer is (c) Introduction, Preamble, General Principles, as explained above.
There are four elements of a civil suit for malpractice; all four have to be believed to be have met by an attorney in order to prevail in a court of law. In some cases, the difficulties of attempting to prove a civil suit, or defending against a complaint, are reflected in an out-of-court settlement. Sometimes the malpractice carrier advises that the expense of going to court for the plaintiff - both emotionally and financially - is not worth the risk.
A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether the psychologist has breached the standard of care (Black’s Law Dictionary, 1996). (Standard of care will be defined below.)
Duty of Care. A Duty of Care arises when there has been an agreement between the psychologist and a current client that the pair will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because a patient does begin to develop an assumption he or she has begun treatment after two or three sessions. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for consideration of longer-term therapy? Is the work being done merely as an evaluation using assessment instruments? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavior model of treatment? If a civil suit should occur, and the parties had not decided whether they wished to work together by the third session or so, the court may decide for them that a “duty of care” had been established. Exchange of money alone does not establish a duty of care; however, if there is nothing else for the court to consider, it may look at any financial matters in an attempt to establish responsibility.
Standard of Care. This broad term refers to the level of proficiency against which any other psychologist’s work will be measured or compared. In other words, what any other trained psychologist would do with reasonable experience. This is also known as the minimum below which a psychologist must not fall (Stromberg, et al., 988; Caudill & Pope, 1994).
Generally, the standard of care is defined by state statute (i.e., California Penal Code 11166, child abuse report law; California Welfare and Institutions Code 5150, involuntary hospitalization) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a “collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and must be followed just as closely as law that has progressed through the legislative process.
Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest” (p. 564). This is generally known as the “reasonable therapist doctrine.” These authors go on to explain that competent treatment can lead to unsuccessful results without meaning that the treatment was negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used; a judgment call that proves wrong is not actionable” (p. 564).
Demonstrable Harm. Can harm be shown to have occurred to the “victim”? Was anyone hurt or harmed? If so, what are his or her damages? The idea is to return a harmed individual (client or patient) to the condition in which the person existed prior to the harm. This is done in only one way in a civil suit: throw money at the damage! In many cases of demonstrable harm with psychologist defendants, the damage claimed is psychological in nature. Therefore, it is much harder to prove and harder to approximate the financial award.
Proximate Cause. Proving that the psychologist’s wrongful conduct caused the damage, and that it was the direct or proximate cause of the harm of the plaintiff’s injury, is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychologist for his or her acts that “caused” the damage to the client. The question is - would the client have been damaged if the psychologist had done anything differently? Where injury is alleged to occur, the client must still prove that the alleged injury is caused by the psychologist’s breach of the standard of care. In 1991, the California Supreme Court adopted a definition of proximate cause easily understandable to lay people - the “substantial factor” element. Was the therapist’s action a “substantial factor” in causing the patient’s injury? (Caudill & Pope, 1995)
Jenny has been Dr. Brown’s client for five months. She calls Dr. Brown saying she is suicidal and wants to “do herself in.” Dr. Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks and to “get social and meet a new lover” so that she can have a good time and “be normal.”
Later Jenny feels so bad she takes the entire bottle of her antidepressants with a bottle of vodka in a suicide attempt. When she calls Dr. Brown the next day feeling suicidal and depressed, he tells her “look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now, just relax.”
Jenny takes the rest of her medication and winds up in the hospital. Her family consults an attorney who is considering filing suit based upon the four elements of a malpractice suit.
NOTE: See Section A – Elements of Malpractice for review of answer material below:
Question 4
Jenny and Dr. Brown had been seeing each other for five months in a therapeutic relationship. Which element of malpractice necessary to meet a civil suit has been met thus far?
Question 5
As far as the second element of a civil suit for malpractice, Dr. Brown was probably not adhering to the current Ethical Principles of Psychologists and Code of Conduct, the statutes of his state, nor the recent case law. Therefore he probably:
Question 6
Since Jenny wound up in the hospital, this probably is evidence of the third element of a civil suit for malpractice, which is:
Question 7
If Jenny would have been fine if her Dr. Brown had treated her in a more appropriate manner, this is evidence of the fourth element of a civil suit of malpractice, which is:
Questions 4 through 7 in order:
(4) Answer is (a) - Duty of Care. This is established when a client-therapist relationship is created because the therapist is actually treating the client or patient. (5) Answer is (b) - breaching the Standard of Care of his profession. In other words, he was not following the “reasonable therapist doctrine”: by doing what another reasonable therapist would most likely do. (6) Answer is (c) - Demonstrable Harm. Since Dr. Brown’s patient wound up in the hospital, harm could be demonstrated. (7) Answer is (d) - Proximate Cause. This can be claimed by the attorney of the patient. In other words, the therapist “caused” the demonstrable harm or caused the patient’s damages. If it could be proven (which would be very difficult to do) that the patient would not have suffered damages of any kind, or the damages would not have been as serious, had Dr. Smith done anything differently, then he might prevail in this element.
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 1% to 12% depending upon the accusation (Baerger, 2001). Experts in legal and ethical matters agree on these methods of minimizing the risk of a malpractice suit (Caudill & Pope, 1995; Welfel, 2002; Clayton & Bongar, 1994; Cranston et al., 1988). (Baerger, 2001; Caudill & Pope, 1995; Welfel, 2002; Bongar, Maris, Berman & Litman, 1998; 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 a psychologist. These “five always” are as follows: We could use the shortcut CCARQ.
Culture
What is the culture of the person seeking treatment with you? Lee and Richardson (1992) tell us that every therapy relationship is a “cross-cultural” relationship because everyone who enters a psychologist’s office is of a different culture from the psychologist, no matter who they are. Additionally, it is not wise to “judge a book by its cover.” In other words, a potential client may look or sound one way, but live in a completely different multicultural family than what appears at the initial visit. One may be an African-American client with a Chinese domestic partner. Psychologists should never make assumptions about a client’s culture and cultural sensitivities, or those of a client’s family.
Counter-transference
This means that every client must be considered for the possible impact he or she has or may have on the psychologist. The psychologist must be able to intelligently evaluate his or her condition, reactions, behavior, feelings, and ability to handle difficult situations in order to avoid the negative effect of counter-transference on the therapeutic relationship (e.g., premature termination, inappropriate behavior by the psychologist).
Area of Competence
All psychologists should be able to handle all the diagnoses in the DSM, which is not realistic! What this actually means is that psychologists must be able to identify their limitations - when they should refer a client due to lack of training, counter-transference, or inexperience. In actuality, psychologists are expected to know how to handle all diagnoses, or know when to refer out due to lack of expertise, competence, or desire to treat, or know when to get proper consultation when gaining new skills and competencies.
Rule out General Medical Condition or Substance Abuse
It is mandatory to rule out any general medical condition or substance abuse that may reasonably be causing, or be related to, mental health symptoms. For example, a person who has panic attacks or any other “head-to-toe” symptoms of anxiety disorders may be suffering from a hormonal imbalance or thyroid dysfunction rather than an actual DSM diagnosis. General medical conditions (See Axis III in the DSM-IV-TR, APA, 2002) must be ruled out by a medical doctor prior to treatment for a mental disorder.
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 psychologists accountable for our 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 psychology. It decides how many hours of continuing education must be taken to renew the license and continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychologist fails to respond to its dictates.
Example: If a psychologist fails to follow the regulations psychologists are required to follow, he or she may be asked to answer for his or her actions before a licensing board. Such inappropriate actions may include sexual exploitation of a patient, fraudulent billing of an insurance company, or something more minor such as failure to keep up with continuing education requirements.
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.
Example: If psychologists breach the APA Code of Ethics, it may become necessary to defend actions taken. Any major breach of ethics generally requires investigation by the ethics committee.
Mechanism 3 is a generally unpleasant factor of American society – when one citizen takes civil action against another citizen. In a civil suit, the only thing being claimed is financial damages, and the only remedy is money. A psychologist does not want to be confronted by this element of accountability, as it is generally grindingly slow and complex, not to mention painfully expensive.
Example: When a patient or closely-related other may be able to “prove” he or she has been harmed by the actions of a psychologist in her professional practice, the “victim” may choose to initiate a civil suit for malpractice. Examples include damage for sexual exploitation, and major breaches of standard of care.
Criminal allegations are the least likely of the four mechanisms holding a psychologist accountable for practice behavior. If there is an unfortunate outcome where the attorney general goes after a psychologist’s license and prosecutes for criminal allegations, the psychologist who is found guilty can find himself or herself spending time in a jail cell.
Example: In this case, the attorney general believes the psychologist acts in such a way that he or she not only seeks to remove the license to practice, but also seeks to support charges of criminal activities against a psychologist.
American Psychiatric Association. (2002). Diagnostic and Statistical Manual of Mental Disorders, fourth edition – Text Revision. APA: Author.
Baerger, D. R. (2001). Risk management with the suicidal patient: Lessons from case law. Professional Psychology: Research & Practice, 4, 359-366.
Bongar, B., Maris, R., Berman, A., & Litman, R. (1998). Outpatient standards of care and the suicidal patient. In B. Bongar, A.L. Berman, R.W. Maris, M.M. Silverman, E.A. Harris, & W.L. Packman (Eds.), Risk management with suicidal patients (pp. 4-13). NY: Guilford.
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.
Gardner, B. (Ed.) (1996). Black’s Law Dictionary, (1996). St. Paul, MN: West Publishing Co.
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 to the Bill of Rights (December 15, 1791) of the Constitution of the United States of America. Basically, it gives people the “right to secure their houses, papers, and effects, against unreasonable searches and seizures…” (The United States Constitution). It is the most basic of the three terms in this section (Cato Institute, 1776/2002).
Confidentiality is an ethics term that denotes a contract between the patient and the psychologist where the psychologist promises to keep all therapy communications confidential, except those required to be disclosed by law. It is a term seen in ethics codes and standard of care documents.
Privilege is a legal term which pertains to who may consent to release of confidential patient material in legal proceedings such as subpoenas for records or testimony.
Florida Statute 490.0147— Confidential Communications & Licensed Psychologists
Any communications between a licensed psychologist and his or her patient or client shall be confidential.
Exceptions to confidentiality
1. CLIENT CONSENT
“Confidentiality belongs to the client… a patient’s consent to release confidential information should be in writing” (Behnke et al, 1998, p. 33).
2. TREATMENT EMERGENCIES
“The disclosure of confidential information in an emergency is presumed to be the expression of a client’s wishes” (Behnke, 1998, p. 35).
3. PUBLIC SAFETY
Allows the psychologist to prevent a patient from harming self or others.
- Tarasoff Ruling
- Danger to Self
- Danger to Others
- Damage to Property
4. TREATMENT (CONSULTATION) Designed to facilitate the treatment process. The APA Code 4.05 Disclosures allows psychologists to disclose confidential information without patient consent in the course of clinical consultation “to obtain appropriate professional consultations” and to get consultations (APA 4.06 Consultations).
5. PROVISION OF MENTAL HEALTH SERVICES This exception ensures patients will receive services “of an acceptable quality” (Behnke, 1998, p. 38). Additionally, the payment section of CMIA and LPS allow information to be “disclosed… to the extent necessary to allow responsibility for payment to be made (Civil Code 56.10(c)(2).
6. THE LEGAL SYSTEM Because a court order is issued by a judge and a subpoena is issued by an attorney, the court order has more power and must be followed absolutely. With a court order, the judge may hold a hearing to determine which part, if any, of the record is to be entered as evidence. The judge determines what is privileged and what falls under the exception to privilege. Florida Statute 394.459(9) makes clear that a psychologist must follow a court order.
7. MANDATORY REPORTING STATUTES As discussed in number three above, an exception to confidentiality exists with regard to danger to self or others. Additionally, in Florida there are mandatory reporting statutes for the following:
- Child Abuse
- Vulnerable Person Abuse
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.
Psychologists respect the dignity and the privacy of patients, clients and others by constantly protecting their confidentiality. Standard 4.01 is broadly written in order to allow for interpretation in various situations and circumstances and requires all psychologists to take reasonable precautions in maintaining confidentiality. The psychologist’s role will help dictate the differing ways in which confidentiality will be enacted along with state and local laws, institutional and organizational policies.
Please see Fisher (2003) for further discussion on APA Standard 4.01 and confidentiality when using the Internet (p. 85).
After going through the legislative process, a law is given a specific number - for example, Evidence Code XXX or Penal Code XXX. Once a law is codified in this manner, psychologists are obligated to follow the dictates of any laws that are relevant to psychology. However, equally important and just as powerful, is “case law.” Case law is defined as “the collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). In essence, case law must be followed just as closely within the state of its legislation as is statute, and it is considered precedent. Case law is relevant to this discussion, as Tarasoff began in California as case law in 1976.
In 1976, the California Supreme Court Justices made some important rulings that changed the responsibilities for all mental health professionals in all states forever. 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.
THE FLORIDA TARASOFF STATUTE
There are nine aspects of Florida law on the issue of Tarasoff that are worth mentioning here (Behnke et al, 2000).
Note that the statute’s language is PERMISSIVE – unlike those in many other states, such as California, mental health professionals in Florida are not required to disclose information in the face of a patient’s threat to harm a third party. Florida’s law does not impose a duty to act. Section 456.059 is not a mandatory reporting statute.
A Florida mental health professional cannot be sued successfully for failing to warn a third party.
If all the conditions above are met, the psychologist may disclose to:
Taking Steps to Protect the Public
The original Tarasoff Supreme Court Justices suggested clinicians faced with a dangerous patient “take steps” to protect the public from danger by taking any relevant actions below:
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 8
Your patient tells you she is so angry she “just wants to kill someone!” When you inquire, she does not have a specific person in mind. Does this reach the threshold of Tarasoff?
NOTE: See Section B – Tarasoff & Florida Law for review of answer material below:
If you answered (b), you realized that there has to be an identifiable victim to reach the threshold for a Tarasoff warning.
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 main question addressed in Florida district courts is whether or not a mental health professional is under a legal obligation to warn a third party when he or she becomes aware of threat from a patient.
Boynton v. Burglass, 590 So. 2d 446 (Fla. App. 3 Dist. 1991)
“Permitted, Not Mandated”
Psychiatrist Burglass was treating Lawrence Blaylock as an outpatient. In May 1986, Blaylock shot and killed Wayne Boynton. Boynton’s parents brought a lawsuit against Dr. Burglass wherein they alleged Dr. Burglass failed to warn their son or the police that Blaylock had made threats of serious harm and was prone to violence. “According to the lawsuit, Dr.; Burglass was negligent in this respect, and his negligence had caused Wayne Boynton Jr.’s death. The 3rd District Court of Appeals took the case as one of ’first impression,’ that is as an issue that no Florida Court had ruled on before, The Court’s analysis was brief and its conclusion unambiguous; mental health professionals in Florida have no duty to warn a potential victim of danger posed by a voluntary outpatient” (Behnke, 2000, p. 22-23).
Often when various state courts grapple with the same issue, they come up with different conclusions, as Florida had very different findings than did California (Behnke, 2000).
In the state of California where Tarasoff was originally decided, it became an import issue to prove a “special relationship” existed between the dangerous patient and the therapist, such that the third party “victim” was owed a duty. California Supreme Court Justices ruled there was a special relationship; thus, a duty was created. The Florida District Court of Appeals linked two conditions to the idea of special relationship in their review of Tarasoff and duty to warn:
A special relationship exists between patient and third party only when:
“Thus, in the Boynton court it was concluded psychiatrists should be under no legal duty to predict when a patient will harm a third party” (Behnke, 2000, p. 23). The court went on to say the decision applies “equally to psychologists, psychotherapists, and other mental health practitioners” (Behnke, 2000, p.24).
Santa Cruz v. N.W. Dade Com. Health Ctr. 590 S0. 2d 444 (Fla. App. 3 Dist. 1991)
Here, the District Court of Appeals ruled once again with the element of the therapist having “custody” or taking charge of the patient in mind. The court ruled that because an inpatient facility did not have control over a patient (“did not have custody”) who shot a third party, NW Dade Center did not owe a duty to the third party to control the patient’s behavior. Behnke et al, 2000 (p.24) note that the issue of control and duty are linked in Santa Cruz as they were in Boynton.
Green v. Ross 691 So. 2d 542 (Fla. App. 2 Dist. 1997)
“A change in the law should occur in the State house rather than the court house” (Behnke, 2000, p. 25).
This case follows from Boynton and Santa Cruz where two major points were highlighted.
This decision strays from the “general rule.”
Psychiatrist Orea was treating Christopher O’Keefe (17) for symptoms including abrupt violent attacks. Part of the treatment allowed Dr. Orea to consult with Christopher’s parents. Christopher had several violent episodes for which he was placed inpatient. Once Dr. Orea determined Christopher was stable enough, he was discharged, and returned to live with his parents. Four days following his final discharge and after a telephone call where Christopher’s mother told Dr. Orea Christopher was out of control and could not be contained at home, Christopher attached both of his parents, killing his father. Mrs. O’Keefe filed a negligence suit against Dr. Orea claiming he had a duty to warn and protect her and her husband because of Christopher’s violence.
From previous cases examined above, we know the Florida courts have found, and it is common law, that there is no duty to warn as a mandate, but that mental health professionals are permitted to warn (see Boynton, Santa Cruz, and Green above).
Surprisingly, the O’Keefe court ruled that Dr. Orea did owe a duty to warn Christopher’s parents about their son’s dangerousness; not strictly because of the duty to warn issues discussed in the previous cases, but because of the (1) fiduciary relationship with the parents, and (2) the physician-patient relationship he had with the parents. The court explained it was “unnecessary to reach the Boynton/Tarasoff duty to warn issue in order to decide the case.” This statement limits the duty to warn relevance to child cases where parents are part of the treatment (Behnke, 2000).
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. It may be that other states will soon decide to take up the call, and make changes, updates, or additions to their Tarasoff laws due to this new case law decision that has recently become precedent in California.
The Facts
David Goldstein was a marriage and family therapist who was treating Geno Colello, a former member of the Los Angeles Police Department, between 1997 and 2001, for work-related emotional problems and problems related to a breakup with his girlfriend. After learning of her romantic involvement with another man, Colello became increasingly depressed and despondent. Goldstein met with Colello on June 19, 2001, and spoke with him by telephone June 20th and 21st 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 21st, telling them he was severely depressed over his girlfriend being with another man. He told his parents he had lost the desire to live and he was extremely resentful toward the new boyfriend. He also told his father he could not handle it, and was considering causing harm to the new boyfriend. Victor Colello contacted Goldstein, telling Goldstein his son Geno was dangerous to himself and to the boyfriend. Goldstein told Victor to take Geno to Northridge Hospital, where Goldstein arranged for Geno to receive psychiatric care. Geno Colello was voluntarily admitted on the evening of June 21st and was treated by Gary Levinson, MD, a staff psychiatrist.
The following day, Levinson planned to release Colello. The father, Victor, contacted Goldstein reporting that Geno was being released by Gary Levinson, MD. Goldstein, who had not yet spoken with Levinson, contacted Levinson to explain to him why Colello should remain in the hospital. Levinson insisted Colello was not suicidal and would be discharged despite Goldstein’s urging Levinson to reevaluate Colello and keep him hospitalized through the weekend.
Levinson discharged Colello on June 22nd. Goldstein had no further contact with his patient. On June 23rd, Colello murdered the new boyfriend, Keith Ewing, and then committed suicide. Keith’s parents sued Goldstein for wrongful death based upon professional negligence. It was that argued Goldstein failed to discharge his duty to warn their son or a law enforcement agency of the risk of harm his patient posed to their son’s safety under Tarasoff.
The Trial
Goldstein moved for a summary judgment arguing the Ewing’s’ action was barred (in California) under California Civil Code 43.92a which required the threat of serious physical harm to the potential victim be made directly to the therapist by the patient, not by the patient’s father. Here, Goldstein argued, he was told of the threat to Keith Ewing by Geno Colello’s father, not by Geno himself. Goldstein claimed Geno never revealed Keith’s surname to him. (See three elements of Tarasoff above).
The Ewings opposed the motion for summary judgment, claiming the therapist was aware of the threat of harm Colello posed to their son who was readily identifiable in any case.
The trial court found the Ewings had failed to follow the statutory requirements necessary to defeat Goldstein’s immunity using CC43.92a, claiming the patient himself had not communicated the threat to the therapist. The trial court also found Goldstein did not have enough information to rise to the level of the serious threat of physical violence required to trigger Goldstein’s liability in a Tarasoff case. The trial court granted summary judgment.
The Ewing’s Appeal
The Ewings make two primary points in their appeal:
1. The trial court’s construction of CC43.92 was unduly narrow – without quoting the law here, most would agree it is rather “wordy.” However, since it was codified in 1985, there has never been any question about how to interpret what it means. Communicated directly by patient to therapist is clear, but in this case, the appellate court had made new law (see explanation below)
2. A communication from a patient’s family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of CC43.92.
The trial court construed the statute in its most usual and ordinary meaning - it precluded any liability upon Goldstein because he did not hear the threat from the patient but from the patient’s father about the patient. However, as seen below, the appellate court disagreed.
The Appellate Decision - July 15, 2004
A communication from a family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of section CC43.92.
When the communication of the serious threat of physical violence is received by the therapist from a member of the patient’s immediate family and is shared for the purpose of facilitating and furthering the patient’s treatment, the fact that the family member is not technically a “patient” is not crucial to the statute’s purpose (p.8).
A therapist’s duty to warn a victim arises if the information communicated to the therapist leads the therapist to believe his or her patient poses a serious risk of grave bodily injury to another (p. 10). The intent of the statute is clear. A therapist has a duty to warn if, and only if, the threat, which the therapist has learned - whether from the patient or a family member - actually leads him to believe the patient poses a risk of grave bodily injury to another person.
Conclusion
Many people are concerned about how to interpret “family member” and “immediate family member” with this new ruling. Does this mean any family member? Only immediate family? Family in another state, or only those who live with the patient? What about a family member who might be vindictive or lying? How do we know if it truly is a family member, or is it a fraternity hoax? What about a disclosure from a roommate, lover, friend, cousin, etc., etc., etc.? Does the information have to be received via in-person telephone communication? What about snail mail, email, fax, or voicemail? What if the psychologist does not have the information needed to reach the relative who has made contact? The answer is below:
|
TARASOFF |
ADDED BY EWING
|
INTERPRETATION OF EWING |
|
Communicated directly to therapist by patient |
Or patient’s immediate family member |
“Reliable other” not only family member |
|
Serious threat of physical harm |
Grave bodily harm |
Means the same thing |
|
Identifiable victim “with a moment’s reflection” |
No changes |
No changes |
Most psychologists have been dealing with these types of occurrences for many years already, and know what to do when they get an outside contact about a patient. The only difference here is that now, in California, and perhaps soon in other states, receiving outside information adds the element of a mandated Tarasoff report to a potential victim and to the police. Before Ewing v. Goldstein, psychologists used clinical judgment in these areas.
In California, the Ewing v. Goldstein appellate decision is now case law that is precedent. All therapists are to follow this new ruling in California. There will be many new articles and interpretations for years to come about how to deal with this new ruling in handling patient disclosures, and now, family disclosures.
This is another precedent-setting case. A young woman at the University of Southern California (USC) insisted on entering an eating disorders inpatient program at Northridge Hospital after gaining weight due to prolixin injections. She was given injections rather than oral medication because she was severely suicidal. She had previously overdosed on her oral meds, tried to hang herself, and enlisted other methods of attempting suicide.
Her physician at USC, Dr. Allen, forbade her to enter the program, telling her she was inappropriate for the program due to her suicidal ideation and constant and serious attempts to take her own life. When she went to the director of the eating disorders program, Dr. Gross, in an attempt to enter the program despite her psychiatrist’s protestations, the eating disorders physician contacted the USC treating and prescribing physician. Dr. Allen failed to inform Gross of her severe suicidal behavior, despite his extreme objection to her appropriateness for the eating disorders program. So the woman was admitted into the eating disorders program as an inpatient.
Unfortunately, she sneaked in the prolixin tabs she had been hoarding and quickly overdosed (her mother failed to confiscate the oral prolixin that she took to Northridge with her). After five weeks in a coma, she was left with permanent brain damage. The mother sued Northridge, which cross-sued USC. Mother won settlement awards from both USC physicians and Northridge physicians. This appellate decision included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers when the patient is seriously dangerous to self.
Meyer (1997) discusses this case with regard to psychologists even though it originally involved psychiatrists. Meyer states, “Referring dangerous patients is a game where it is the responsibility of the pitcher to signal to the catcher just what sort of patient is being thrown the catcher’s way. This aspect of Tarasoff is less a duty to warn than a duty to inform.” (p. 369) Use caution here when exchanging information about a suicidal patient without release of information from the patient.
In Bellah, a California psychiatrist concluded that his young adult patient, who was a serious drug addict, was suicidal, but he chose not to inform her parents (for reasons that are not discussed in the case). The patient eventually overdosed, and the parents sued with the goal of extending Tarasoff, or duty to warn of her dangerousness, to suicide.
It appeared that all three requirements of Tarasoff were met:
The Bellah court refused to extend Tarasoff to suicide. The court ruled that Tarasoff was meant to protect a third party victim of the psychologist’s patient, not the patient himself. Thus, Tarasoff was not extended to suicide in 1978. Indeed, in a recent search there were no cases - although certainly one may exist - where Tarasoff had been formally extended to include suicide such that it has become case law.
However, Meyer (1997), in his analysis of the Gross v. Allen (1994) case concludes, ”Bellah has fostered a ‘false sense of security’ all these years.” as Meyer feels the Tarasoff court, found an implicit “duty to protect” suicidal patients by intervening to prevent suicide…”All along in the original Tarasoff decision, and that Gross held that Tarasoff does not state… that a therapist may be silent when to speak may save the life of his patient. To the contrary, to the extent that Tarasoff considers the matter, it finds a duty to speak.” (p. 367.)
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.
NOTE: See Section B – Florida District Court Decisions and Tarasoff for review of answer material below.
Question 9
Joe tells you he is going to kill his brother by making him hold his breath for 20 minutes next New Year’s Eve. Is this Tarasoff?
If you guessed (c), you are correct. According to Florida law, the method used must be reasonable, imminent, and with an identifiable victim.
Question 10
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; therefore, the third answer (c) is inappropriate. The last answer (d) is a subset of the first answer, making (a) a more inclusive answer.
Experts and courts accept that psychologists cannot predict with any certainty who will be dangerous or when (for example see Baerger, 2001; Bednar, R., Bednar, S., Lambert, M., & Waite, D., 1991; Otto, 1992). Indeed, the methods for assessing suicide are far more acceptable in court than are those for homicide. “Nowhere in the research literature is there any documentation that clinicians can predict dangerous behavior beyond the level of chance” (Stromberg et al., 1988, p.522). That being said, the following is a compilation of input from various sources that is relevant to the assessment of homicide and violence:
This is a tried-and-true and well-known suicide assessment called the SAD PERSONS that was originally developed by medical residents in a crisis situation who wanted to identify which patients were at risk for suicide from those who were not. Their method was reviewed once again in 1994 (Juhnke, 1994). Additionally, in April 2003, William H. 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:
Sex
The research consistently suggested that male patients are more likely to act out dangerously to self and others.
Age
Age vulnerability seems to change from time to time. Now that the Internet is so available, psychologists are able to go online and research the culture and age of the client in question to establish potential.
Depression
Clinical depression increases suicide potential.
Prior History
As with assessment for violence, risk increases when there is a history of attempts.
Ethanol Abuse
Amusingly, in 1983, the authors wanted to make the initials work: thus, they plugged in “ethanol” rather than alcohol, which would have made it SAD “PARSONS”! Their research indicates alcohol and drug abuse increases the likelihood of suicide.
Rational Thinking Loss
Potential psychosis: “A voice told me to kill myself.”
Support System Loss
Decreased support system indicates increased risk of suicide.
Organized Plan
As with violence assessment, this speaks for itself.
No Significant Other
Originally, this read “No Spouse” which is clearly outdated today.
Sickness
Has the person or a loved one recently been diagnosed with an illness or disease that has made him or her want to end his or her life?
The beauty of the initial SAD PERSONS is it included (and still includes) an assessment scale as follows. The psychologist is to give one point for each positive profile answer. For example, if the patient is a male, give one point for that answer (increased likelihood as explained above); if the patient has no prior history of suicide attempts, give a zero or that answer, and so on. Then use the chart in decision-making, and consult and document as usual.
|
0-2 points |
No real problems; keep watch |
|
3-4 points |
Send home but check frequently |
|
5-6 points |
Consider hospitalization involuntary or voluntary, depending upon your level of assurance patient will return for another session |
|
7-10 points |
Definitely hospitalize voluntarily or involuntarily |
Vignette – Danny
Danny is a 28-year-old man who has just told you his girlfriend has broken up with him. He is not particularly happy at work but continues to get up every morning, catch the bus, get to work, and get to his desk on time.
He tells you he will not be seeing you for a few months because he has decided to take some time off work. It seems he has given many of his possessions away because he “is paring down my possessions” and “I don’t need much anymore.”
You know Danny has been a heavy pot user in the past and in high school swallowed a bottle of Tylenol with a fifth of vodka. When you inquire about his state of mind now, he tells you he is very happy to be getting time off from work and taking a long vacation.
Question 11
Conduct 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), because if you add up the points, Danny comes up with six - 1. Male, 2. Depressed, 3. Prior attempt, 4. Drugs, 5. No support system, and 6. No significant other.
Question 12
What would you do to further protect Danny from harm without involuntarily hospitalizing him?
NOTE: See Section B – Stromberg et al., preventative steps and for review of answer material above.
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.
Bednar, R., Bednar, S., Lambert, M., & Waite, D. (1991). Psychotherapy with High-risk Clients: Legal and Professional Standards. Pacific Grove, CA: Brooks/Cole.
Behnke, S., Winick, B., & Perez, A. (2000). Florida mental health law. NY: WW Norton.
Campbell, W.C. (April, 2004). Current Psychiatry Online. http://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.
Juhnke, G.E. (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.
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.
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.
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…” (Please 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).
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 the topic, and/or speaks, lectures or teaches the topic. Thus, most psychologists are specialists in some areas (children, ADHD, depression, etc.), but may not reach the level of expert. The former California Association of Marriage and Family Therapists (CAMFT) attorney Zachary Pelchat cautions, “Keep in mind that by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (p. 25.). All are competent to practice by virtue of being licensed to practice. By using the term specialist, the clinician is implying that he or she has more knowledge and is practicing a “higher standard of care when dealing in their specialty… keep in mind… when by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (Pelchat, 2001, p. 25),
As early as 1914, Supreme Court Justice Cardoza commented, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” (Schloendorff v. Society of New York Hospital, 211 NY.125, 1914).
What actually is informed consent? The patient consents to be in treatment with the psychologist after being informed of office policies, treatment methods, and limits of confidentiality. There are two basic forms of civil liability regarding informed consent, according to Corey, Corey & Callanan (1998).
Berner (1998) agrees with the APA (former 1992 Code 4.02 but not retained in 2002) when she discusses the elements required for informed consent to be viable:
Finally, as Guithiel said in 1980, “If it isn’t written down, it didn’t happen.” Document in the patient’s chart that informed consent was given, the patient agrees to treatment voluntarily, and has the capacity to consent voluntarily. Most individuals have forms that cover these issues, especially with HIPAA provisions being added recently (more on this later).
Question 13
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 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) states the actual limits of confidentiality as:
Stromberg et al. (1988), a group of eight attorneys who were consulted by the APA in the 1980s, said it well: “Detailed records usually help rather than hurt a health care professional in defending against claims…sloppy, sparse records … appear unprofessional, uncaring, haughty or deceptive” (p. 487). The primary purpose in keeping records is continuity of patient care in the event the psychologist must transfer care to another professional. Other purposes include review of the delivery of services, self-monitoring, and documentation of what is working, and ongoing progress. In essence, properly kept records enhance the treatment and protect the psychologist from litigation and spurious ethics and licensing allegations.
Experts suggested what should be in the contents of patient records prior to HIPAA (Canter, Bennett, Jones, & Nagy, 1994; Bennett, Bryant, VandenBos, Greenwood, 1990; APA, 1994). However, the basics remain the same:
How Long Should Patient Records be Retained?
The regulation for psychologists (Fla. Admin. Code Ann. R.64B4-9.001[2]) states, “A full record of services shall be maintained for 7 years after the date of the last contact with the client or user.” “Complete psychological records shall be retained by the licensed psychologist for a minimum of 3 years after (a) the completion of planned services or (b) the date of the last contact with the user, which occurs later in time…. Either the complete records or a summary of those records shall be retained for an additional 4 years” (Fla. Admin Code Ann. R.64B19-19.004[3]) (Florida Laws & Rules for Psychologists, 2004).
Question 14
What does APA 4.02 have to say about when a psychologist should get informed consent from a patient?
NOTE: See Section C - APA Ethics Codes applicable to informed consent for review of answer material below.
The best answer is (a), despite the fact that “outset” is not clearly defined as a specific number of sessions in ethics code APA 4.02 section b. The standard of care seems to infer “outset” means within the first few sessions.
There are many good treatment planners available to aid clinicians in preparing chart notes (see The Adult Psychotherapy Progress Notes Planner by Arthur E. Jongsma, Jr.; Therapist’s Guide to Clinical Intervention by Sharon L. Johnson). All psychotherapy notes are under subpoena and court order. There are no such things as what are sometimes called “shadow notes,” which refer to personal notes the psychologist takes and uses for consultation, counter-transference consultation, and peer supervision groups. Any notes that have to do with a specific patient may be subject to subpoena (Caudill & Pope, 1995; Thompson, 1990; Bennett et al., 1990). In fact, “Many therapists keep shadow notes containing personal speculations…the legal status of such records is largely undetermined” (Thompson, 1990 p. 111). Psychologists must know case law in his or her state, and get consultation from experts on a case-by-case basis.
Stromberg et al. (1988) take a very strong stance in this area. They note that many psychologists are under the false belief that “process” notes are private and the property of the psychologist. This could not be more untrue according to these attorneys (Stromberg et al. (1988). However, in the terminology, “progress” and “process” notes are considered different. HIPAA now refers to “process” notes as “psychotherapy” notes.
|
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 crises Public record of goals set…goals met Decision-making |
Question 15
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.
Answer to Question (3) is (b). All record information is the property of the patient and there is no such thing as “shadow” records or keeping private records at home.
Once again, there are numerous courses both online and in-person where psychologists can learn who must become HIPAA compliant and how to become HIPAA compliant. The basics will be discussed here in order to integrate HIPAA compliance into the discussion of record keeping.
The Health Information Portability and Accountability Act (HIPAA) dictates therapists follow new and complicated federal guidelines with regard to confidentiality of patient records for storage, informed consent, employee training, security of records, and certain electronic transactions of patient information. Normally, federal law supersedes state law; however, with regard to HIPAA, psychologists are instructed to follow whichever law protects patient’s privacy more adequately and completely. Psychologists are required to study both federal and state laws that are applicable and to decide which ones supersede the others. Fortunately, many available courses do this work for clinicians
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 either a computer fax or email, you are required, under federal law, to be HIPAA compliant. If you use telephone lines verbally, free standing faxes, or snail mail for transmission of patient information, you are not required to be HIPAA compliant. However, if you use any billing service that does any such transactions via computer lines or computer faxes or any other electronic means, then you are required to make your office HIPAA compliant, even if you personally do not transmit information via the electronic methods included in HIPAA. Additionally, you are required to have a contract with your hired billing agent guaranteeing he or she is, indeed, following HIPAA guidelines on your behalf.
HIPAA’s purpose is to “cut back” on paperwork by using primarily computer storage and computer transactions. Some experts say all psychologists will eventually have to be HIPAA compliant whether or not they make electronic transactions. 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 14
HIPAA refers to a group of federal laws that supersede state laws except when:
NOTE: See Section C – HIPAA and Patient Records for review of answer material below.
As mentioned earlier, HIPAA includes federal laws that nearly always supersede state laws. The exception is when state law gives more protection to the patient’s confidentiality rights. Thus, answer (c) is the best answer here.
State law and HIPAA federal laws agree on patients having access to their own health records. Once a psychologist has been given written notice, and
the following must be followed:
Access to Copy of Records - Fla. Admin. Code 64B19 - 19.005
Prepare Summary of Patient Records - Fla. Admin. Code 64B19 – 19.005
In Florida, the psychologist “owns” the actual file, but the information in the file is the property of the patient (Bennett, 1990; Behnke et al, 2000). Thus, the patient may view or have a copy or summary of his or her records at the time of his or her choosing. A summary of record is an option that is often suggested by the psychologist versus copying the entire file. This may or may not be acceptable in court proceedings, depending upon the judge’s pleasure. The elements of a summary of records are enumerated by Canter et al (1994):
(Please see codes within APA 6 that apply as we go along)
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 15
How long must patient records be retained in Florida?
NOTE: See Section C - Record Retention for review of answer material below:
The answer is (b).
American Psychological Association. (1994). APA’s New Record Keeping Guidelines. Monitor, 89, 984-986.
Behnke, S., Winick, B., & Perez, A. (2000). Florida mental health law. NY: WW Norton.
Bennett, B., Bryant, B., VandenBos, G., & Greenwood, A. (1990). Professional Liability and Risk Management. Washington, DC: APA.
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.
Board of Psychology. (2004). Florida Laws & Rules for Psychologists. www.doh.state.fl.us/mqa
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.
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).
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, particularly 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 do. 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 marriage and family therapist:
(1) exploitation
(2) multiple relationships
(3) confidentiality
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.
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, as long as it would not be a breach of confidentiality to either party, to “check in” with a patient to see if they are opposed to you treating the referral. 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 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 the impact of this have upon both patients? (Shapiro & Ginzberg, 2002).
The Severely Disturbed Patient
A greater degree of pathology should dictate the psychotherapist’s decision whether to accept a referral from a current or former patient. The patient’s level of ego strength, ability to share, maturity, and diagnosis are critical factors in the final decision.
Rural Areas versus Large Towns
Practicing in a small town offers numerous pleasures and many conflicts, especially in the area of multiple relationships. In rural settings, everyone is your neighbor and many roles overlap. Someone who lives three blocks away in New York City is very different from a neighbor who lives three blocks away in a small town. Thus, the role of the marriage and family therapist may overlap with worshiping at the same church or synagogue, going to the same gym, having children in the same school, etc. Therefore, accepting a referral from a current or past patient in a rural setting is fraught with different problems than in a large town (Shapiro & Ginzberg, 2002).
Counter-transference
If the referring therapist is perceived to be of higher status or is held in higher esteem, it is not unusual for the receiver of the referral to feel pressured to impress the referring colleague. If the referring therapist is perceived as incompetent, or unethical, it may intrude upon the treatment as well.
When a former instructor or supervisor refers a patient, it is a truly rewarding moment in one’s professional career. It becomes difficult to decline a referral from someone who can help one’s career or from someone the therapist wishes to impress; however, patient welfare takes precedence over any other consideration in the decision-making process.
In accepting a referral from another therapist held in esteem, the therapist may find him or herself trying to justify his or her confidence. Thus, there is pressure to do a good job, to help the client, to take all referrals, even if one does not have the expertise to treat the particular issue. Shapiro and Ginzberg (2003) discuss the therapist who accepts a new referral from a “higher status” referring therapist that one would not normally accept. This leads to a feeling of overwhelm, counter-transference to the patient, and perhaps decreased confidence. The therapist who accepts unwanted referrals from a higher status source may accept a lower fee than appropriate, or create a cramped schedule as a sacrifice in order to stay in good graces with the referral source.
Resistance to Examining the Referral Dilemma
Shapiro and Ginzberg (2004) report, “We were struck by the lack of interest that colleagues displayed in the proposed topic of this article (referrals)... Naturally, we became curious about this. Eventually we came to understand that this reaction of boredom was a defense… one that might explain why others have not written much on this topic” (p. 261). The authors then posited some ideas why psychotherapists have remained silent on this topic:
Implications for Practice
Everyone may be at risk when a psychotherapist fails to thoroughly examine the pitfalls when a current or past patient refers a patient.
Referral from a Current Patient
A referral is an important bit of information from a current patient that should be discussed and examined prior to accepting the referral. If the current patient expresses second thoughts, or the psychotherapist has concerns (obvious or unexplained), it may be best to decline. The current patient is always the primary responsibility in this situation; consider all possibilities prior to acting upon the referral. If it will cause the therapist anxiety, interfere with the current or new patient’s therapy, distract the therapist, cause counter-transference reactions, improper boundaries, or problems with confidentiality or any other issues, then the therapist must decline.
As a result of their research, Shapiro and Ginzberg (2003) developed ten questions the psychotherapist should ask him or herself to help uncover and assess the risks inherent in referrals that could compromise either therapeutic relationship (the current patient or the potentially new patient):
Since psychotherapists need referrals to maintain their practice, it is necessary to accept referrals. Therefore, the challenge remains to appropriately separate financial issues from clinical issues. Clearly, psychotherapy has a circuitous and unpredictable route. Thus, the therapist can never know ahead of time if the original patient will have a need to return to therapy. When in doubt, consult with an expert and document the consultation.
APA ETHICS CODES THAT APPLY TO REFERRALS
THERAPIST SELF-DISCLOSURE
Hill and Knox (2001) note “self-disclosure can be broadly defined as statements that reveal something personal about therapists” (p. 413). These authors distinguish between two types of self-disclosures:
Hill and Knox (2002) point out that some therapists enthusiastically promote therapist self-disclosure while other therapists adamantly oppose its use. It remains one of the most controversial therapist interventions in the therapist’s arsenal of tools.
Psychologists continue to wrestle with the ethics and effectiveness of using self-disclosure in the therapeutic process. Therapist disclosure about personal thoughts, feelings, or experiences traditionally has been thought of as contaminating or intrusive to the process and has no place in therapy (Goldstein, 1994). It is no secret Freud himself revealed many aspects of his personal life to his own patients. He shared his dreams and early childhood memories with his patients, not to mention cooking meals for them at certain times!
It is impossible to avoid all forms of self-disclosure by virtue of being a person in the room with the patient. For example, if one defines self-disclosure broadly as “a process by which the therapist reveals aspects of himself or herself to the client,” then it is impossible to avoid self-disclosure completely (Mahalik, Van Ormer, & Simi, 2000). The therapists gender, ethnicity, style of dress, office décor and other things expose information about the therapist’s self.
The lion’s share of research on therapist self-disclosure involves non-therapy situations; however, the research sets up simulations of therapy instead. Usually undergraduate psychology student participate for course credit. After being presented with a hypothetical disclosure situation, students rate their perceptions of the disclosure or of the therapist. Hill and Knox (2001) report out of 18 such research studies, 14 reported positive perceptions of the therapist self-disclosures.
Authors such as Watkins (1990) concluded self-disclosing therapists who do so in moderation or non-intimate ways were viewed more favorably and elicited more client self-disclosure than did therapists who failed to disclose at all, or who disclosed a lot, or who disclosed very intimate material. “Hence, we can conclude that nonclients typically perceive therapist self-disclosure positively” (Hill & Knox, 2001, p. 413).
USE OF THERAPIST SELF-DISCLOSURE IN PSYCHOTHERAPY
How often do therapist’s disclose?
A number of studies, reported by Hill and Knox (2001) found 1 to 13%, with a mean of 3.5% across studies, of all therapist interventions in individual therapy situations were self-disclosures. These authors conclude that, from the meta-analysis, therapist disclosure occurs infrequently in therapy.
What is the focus of therapist self-disclosure?
Fortun
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