"I Hate It When That Happens..." - Law & Ethics For Psychologists, Revised 2008 by Pamela H. Harmell, Ph.D. 3 Credit hours - $74 Last revised: 06/15/2008 Course content © copyright 2004-2008 by Pamela H. Harmell, Ph.D.. All rights reserved. ContinuingEdCourses.Net is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists. ContinuingEdCourses.Net maintains responsibility for this program and its content. ContinuingEdCourses.Net is approved by the Association of Social Work Boards (ASWB) to offer continuing education for social workers, through the Approved Continuing Education (ACE) program. ContinuingEdCourses.Net maintains responsibility for its courses. ASWB provider #1107. ContinuingEdCourses.Net is approved by the National Board for Certified Counselors (NBCC) as an NBCC-Approved Continuing Education Provider (ACEP) and may offer NBCC-approved clock hours for events that meet NBCC requirements. ContinuingEdCourses.Net solely is responsible for all aspects of the program. NBCC provider #6323. ContinuingEdCourses.Net is approved by the California Board of Behavioral Sciences (CA-BBS) to offer continuing education for MFCCs (MFTs) and LCSWs. CA-BBS provider #3311. ContinuingEdCourses.Net is approved by the Ohio Counselor, Social Worker, & Marriage and Family Therapist Board (OH-CSWMFT) to offer continuing education for counselors, social workers, and MFTs. OH-CSWMFT provider #RST080501 & #RCX010801. Take the Course Take the Test Buy your Certificate

LEARNING OBJECTIVES

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

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

AUTHOR DISCLAIMER

Thank you for deciding to take this course!

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

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

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

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

Since this disclaimer applies to each section of the course, it will only be stated once in this beginning Section A. This course has been updated and has the most current information available. However, it is incumbent upon each psychologist to verify laws and standard of care in his or her location from time to time. If you have taken this course before, please note that Section A is foundational and meant to have repeat information for those who have not yet taken this course.

Good Luck and I hope you enjoy the journey!

LEARNING OBJECTIVES FOR SECTION A

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

INTRODUCTION TO THE COURSE

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

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

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

BRIEF INTRODUCTION TO LAW

Question 1 – Just for fun!

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

Federal Law is superseded by State Law:

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

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

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

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

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

There are five important reasons for having an ethics code:

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

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

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

BASICS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION ETHICS CODE

There are two primary sections:

The Aspirational & Unenforceable Sections

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

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

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

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

Principle A: Beneficence and Nonmaleficence

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

Principle B: Fidelity and Responsibility

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

Principle C: Integrity

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

Principle D: Justice

• Psychologists act with fairness and justice.

Principle E: Respect for People’s Rights and Dignity

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

The Enforceable Section

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

Question 2

The APA Code of Ethics is a legal document:

1. True
2. False

Question 3

The Aspirational (Unenforceable) section of the code contains:

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

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

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

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

THE ELEMENTS OF MALPRACTICE

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

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

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

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

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

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

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

Jenny Vignette

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

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

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

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

Question 4

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

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

Question 5

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

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

Question 6

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

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

Question 7

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

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

Questions 4 through 7 in order:

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

METHODS OF PREVENTING MALPRACTICE

Baerger (2001) notes, “the fear of being sued may adversely impact clinicians more than the lawsuits themselves” (p. 359). Estimates of the chance of being sued for malpractice range from 1% to 12% depending upon the accusation (Baerger, 2001). Experts in legal and ethical matters agree on these methods of minimizing the risk of a malpractice suit (Baerger, 2001; Caudill & Pope, 1995; Welfel, 2002; Bongar, Maris, Berman & Litman, 1998; Clayton & Bongar, 1994; Cranston et al.,1988).

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

Ethics Codes that Apply

General Principles – Unenforceable

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

Question 1

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

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

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

CONSIDERING CLIENTS IN THE EARLY PHASE

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

Culture

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

Counter transference

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

Area of Competence

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

Rule out General Medical Condition or Substance Abuse

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

Question the Reporter

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

INTRODUCTION TO ACCOUNTABILITY

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

Mechanism 1 – State Licensing Boards

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

Mechanism 2 – Ethics Committees

There are three possible ethics committees that can regulate psychologists:

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

Mechanism 3 – Civil Suit for Malpractice

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

Agency Four – Criminal Allegations (Attorney General Involvement)

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

LEARNING OBJECTIVES FOR SECTION B

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

INTRODUCTION TO PRIVACY, CONFIDENTIALITY & PRIVILEGE

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

Privacy “is the constitutional right of individuals to choose for themselves whether or when to reveal private information” (Bennett et al, 2006, p. 105). Confidentiality and privilege are distinct from privacy. Confidentiality is an ethics term that imposes a duty upon the psychologist to keep information that has been disclosed in the therapeutic relationship in confidence. Embedded in privilege is the concept of law in which only the patient may give permission to release information in judicial proceedings. The therapist may release such information without patient permission in very limited circumstances.

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

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

In general, privacy, privilege and confidentiality are benchmarks for psychotherapy and psychotherapy cannot progress successfully without them. Psychotherapy requires an atmosphere of confidence and trust where personal and intimate disclosures can take place without worry. This is why there are so many ethics codes (discussed later), laws of privileged communications, subpoenas and court orders to protect a patient’s disclosures.

“Holder of Privilege” - In most states, the patient holds the privilege. This means that the patient makes the decision as to whom the psychologist may release testimony or records. In all but a few cases, only the patient makes this determination. There are exceptions to the holder of privilege such as child abuse, elder or dependent or vulnerable adult abuse, Tarasoff/Ewing or dangerous to self or other.

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

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

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

Question 1

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

1. Privacy
2. Confidentiality
3. Privilege

Question 2

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

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

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

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

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

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). In other words, when a client gives the psychologist a “waiver” to release information to a third party, the psychologist may do so for a limited time. Once the client removes permission or removes the waiver, client consent is over.

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). In this case, the psychologist may need to contact a family member to protect the patient. Certainly this overlaps with the next category “Public Safety” however, the therapist must make difficult decisions with regard to the safety of the patient, patient’s family, standard of care, and clinical judgment.

3. PUBLIC SAFETY

Allows the psychologist to prevent a patient from harming self or others. Sometimes this is a difficult decision that requires consultation and documentation as backup in decision making.

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).

The APA Ethics Code 4.06 permits psychologists to consult with other professionals concerning a patient so long as you

Do not disclose information that reasonably could lead to the identification of a client/patient.

And you limit the disclosure

To the extent necessary to achieve the purposes of the consultation.

5. PROVISION OF MENTAL HEALTH SERVICES

This exception ensures that 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).

In general, when experts use the phrase “of an acceptable quality,” they are referring to the standard of care given the situation at hand.

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.

7. MANDATORY REPORTING STATUTES

As discussed in number three above, an exception to confidentiality exists with regard to danger to self or others.

Ethics Codes that Apply to Confidentiality

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

APA 4.06 Consultation as discussed earlier.

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).

INTRODUCTION TO DANGEROUSNESS

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

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

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

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

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

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

In 1970, her parents sued all involved with the mental health facility to no avail. In an unusual move, the California Supreme Court Justices decided to consider the situation in 1974, making the very famous California decision known as “Tarasoff I.” This decision was reaffirmed by the California Supreme Court Justices in 1976 and case law was made.

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

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

Communicated to the psychotherapist directly by the patient

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

Serious threat of physical harm that is imminent

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

Reasonably identifiable victim

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

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

Warn the potential victim(s)

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

Notify authorities

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

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

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

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

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

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

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

Ethics Codes that Apply to Dangerous Patients

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

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

UPDATES AND ADDITIONS TO TARASOFF

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

Karen Scancarello was a very troubled young woman who had severe problems with depression and suicidality for several years. After driving her car into a tree, purposely ingesting fifty halcyon tablets and attempting to strangle herself, she was admitted to the University of Southern California (USC) medical center. Previously she had been treated by Drs. Allan and Pitts at USC, two psychiatrists, for medication management (Jensen, 2005).

Ms. Scancarello insisted on entering an eating disorders inpatient program at Northridge Hospital after gaining weight when her physicians gave her prolixin injections rather than oral medication due to her tendencies to overdose on oral medication.

Her physician at USC, Dr. Allen, forbade her to enter the program, telling her she was inappropriate for 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 Nardil medication that her mother failed to confiscate and she quickly overdosed. After five weeks in a coma, she was left with permanent brain damage. She sued Northridge, and Dr. Gross and ultimately won $30,000 from the hospital and $399,000 from Dr. Gross. Dr. Gross cross-complained against Dr. Allan and won. The California appellate decision against Dr. Allan included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers (here, Dr. Gross) when the patient is seriously dangerous to self.

Jensen (2005) notes that “in Gross, the Court of Appeal affirmed the jury’s verdict that Dr. Allan had been negligent by failing to disclose certain information to Dr. Gross (the subsequent caregiver). The Court of Appeal reached this conclusion by examining the cases through the lens of the “special relationship” that a psychiatrist has with his or her patients” (p. 25). In other words, the decision does NOT only apply to medical doctors or psychiatrists, but to all psychotherapists, due to the special relationship between patients and psychotherapists.

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

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

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

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

It appeared that all three requirements of Tarasoff were met:

1. Communicated Directly by Patient to Therapist

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

2. Serious Threat of Physical Harm that was Imminent

Consistent drug use throughout the treatment with Dr. Greenson

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

Tammy Bellah, the patient herself

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

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

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

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

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

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

On the other hand, Jensen (2005) posits that the Bellah Court decided that Tarasoff did not apply to suicidal patients. Jensen states that the Bellah Court stated: We conclude that Tarasoff requires only that a therapist disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or mere property damage (p, 24). Jenson continues: “The Court did not want to create another mandated exception to confidentiality because it believed the exception could impede access to mental health services” (p. 24).

Once again, these are the opinions of two experts and may or may not be considered case law or standard of care at this time, especially in your state. If one is faced with this dilemma, remember to consult with an expert and document the consultation in the patient’s file.

Question 3

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

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

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

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

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

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

The Facts

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

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

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

Levinson discharged Colello on June 22^nd. Goldstein had no further contact with his patient. On June 23^rd, Colello murdered the new boyfriend, Keith Ewing, and then committed suicide. Keith’s parents sued Goldstein for wrongful death based upon professional negligence. It was argued that 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 Ewings’ 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:

The primary addition is if a psychotherapist in California is told by his or her patient’s family member or reliable other that the patient is a danger to another person, and all other aspects of Tarasoff are met, and the therapist believes the disclosure is “for the advancement of the patient’s therapy,” then this becomes a Tarasoff situation.

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.

In reality, psychotherapists are required to protect the public and the patient from harm. This requires taking steps to prevent harm from occurring such as those mentioned previously. If a family member or “reliable other” deemed to be a person who is trying to advance the patient’s therapy, then the therapist must consider this a Tarasoff situation as follows:

ASSESSMENTS FOR VIOLENCE & SUICIDE

Assessment for Violence, Dangerousness, or Tarasoff

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

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

Suicide Statistics

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

REALITY:

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

TOOL:

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

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

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

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

The SAD PERSONS Suicide Assessment for Risk Model suggests:

Sex

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

Age

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

Depression

Clinical depression increases suicide potential.

Prior History

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

Ethanol Abuse

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

Rational Thinking Loss

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

Support System Loss

Decreased support system indicates increased risk of suicide.

Organized Plan

As with violence assessment, this speaks for itself.

No Significant Other

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

Sickness

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

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

NOTE: Use caution in relying on the scoring system. For example, if the patient has a score of TWO points, but the two 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.

Question 4

Vignette – Danny

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

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

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

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

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

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

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

Question 5

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

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

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

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

SAD PERSONS FOR CHILDREN AND ADOLESCENT - SCORING SYSTEM

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

GUIDELINES FOR CLINICAL INTERVENTION

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

Additional Risk Factors

Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:

1. Depression or affective disorder
2. Ethanol or drug abuse
3. Rational thinking loss
4. Organized suicide plan

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.

LEARNING OBJECTIVES FOR SECTION C

• To gain knowledge about patient record keeping and administration (i.e., proper intake procedures)
• To review updates about HIPAA and patient records
• To learn the new APA Record Keeping Guidelines

PROTECTIVE INTAKE: TELEPHONE OR IN OFFICE

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

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

Elements to consider are:

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

Definition of Terms for Level of Psychologist Practice:

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

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

INFORMED CONSENT aka CONSENT FOR TREATMENT

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

Informed consent is not a robotic legal exercise done for the purpose of checking off our duty to inform a client of our office policies. It is an effort to promote patient autonomy by increasing patient participation in their own treatment and decision making. Additionally, good informed consent protects both parties from misunderstanding later in the treatment process. Research shows patients who are involved in the patient role have better outcomes in treatment (Tryon & Winograd, 2001). Beahrs and Guthiel (2001) found that informed consent procedures that are good empower patients to gain information and ask pertinent questions which aids in their recovery.

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

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

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

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

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

Question 1

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

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

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

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

ETHICS CODES THAT APPLY TO INFORMED CONSENT

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

The limits of confidentiality are:

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

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

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

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

PATIENT RECORD-KEEPING GUIDELINES

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

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

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

How Long Should Patient Records Be Retained?

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

Specialty Guidelines for Delivery of Services:

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

Interpretation:

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

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

NOTE: States are in the process of updating laws of private practice record retention.

Question 2

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

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

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

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

Chart Notes

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

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

Question 3

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

1. True
2. False

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

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

HIPAA AND PATIENT RECORDS

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

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

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

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

Question 4

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

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

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

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

PATIENT ACCESS TO RECORDS AND RECORD RETENTION

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

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

according to HIPAA, the following must be done:

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

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

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

New APA Record Keeping Guidelines, February 2007

These new guidelines provide a framework for maintaining, keeping and disposing of patient records. They address electronic records, organizational settings, and multiple clients. They do not establish rules or regulations that must be followed; but do provide an overall conceptual model to follow.

1. Responsibility for Records

Psychologists must retain responsibility for maintenance and retention of their work. Psychologists must maintain records (APA Code 6.01). These records should document and reflect professional work in a legible and accurate manner such that others could carry on in the absence of the psychologist. Policies of the institution or setting should be followed. If a conflict occurs, the commitment to the ethics code should be noted in resolving the conflict.

2. Content of Records

When making decisions about what should be in the records, the psychologist takes into account factors such as the length of the psychological services, the source of the information recorded, the intended use of the records, and his or her professional obligations. A psychologist tries to include only information germane to the purposes for the service provided (APA Code 4.04). Consistent with Principle A, psychologists are sensitive to the potential impact of the language used in the record.

Additional Risk Factors

Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:

1. Depression or affective disorder
2. Ethanol or drug abuse
3. Rational thinking loss
4. Organized suicide plan

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.

Level of Detail in the Record

One should balance the client’s needs with legal and ethical requirements and risks to confidentiality. If information is vague or overly broad, it may be insufficient for appropriate treatment. However, some clients request the psychologist keep minimal records for maximum protection and privacy. The council suggests the following considerations when deciding the amount of detail in a patient’s records:

The Client’s Wishes. If the client requires minimal records be kept as a condition of treatment, the psychologist considers whether treatment can be provided under these circumstances.

Emergency or Disaster Relief Settings. Sometimes in emergency situations, situational demands prevent the agency or psychologist from being able to provide all necessary elements of a routine record. Urgent situations may lead to short-term treatment or the immediate crisis. In some situations such as disaster relief there is only one on-site intervention such that highly detailed records are not possible.

Alteration or Destruction of Records. A psychologist may not change, alter or destroy a record. If a subpoena is received, the council suggests the psychologist seek consultation before adding anything to the record. If one does add to the record, the record should be documented as such.

Legal/Regulatory. A psychologist takes into account any specific legal or regulatory considerations prior to disclosure of records. For example, certain settings have statutes and dictates regarding AIDS/HIV documentation, juvenile legal issues, and child abuse reporting.

Agency/Setting. Always consider institutional policies and procedures when making decisions about the level of detail in patient records.

Third-party Contracts. A psychologist must consider the contract he or she has agreed upon with the HMO or insurance company payor. Many third-party payors require specific information be included in the record. Once a psychologist has signed and agreed to a contract, accepted clients from the third-party payor, there could be adverse consequences for failure to follow the contract.

Information in the Client’s File

1. Identifying data; name, client ID number, etc.
2. Contact information; phone number, address, next of kin, etc.
3. Fees and billing information
4. Where appropriate, guardianship or conservatorship status
5. documentation of informed consent or assent for treatment (APA Code 3.10)
6. Documentation of waivers of confidentiality and authorization or consent for release of information (APA Code 4.05)
7. Presenting complaint, diagnosis, or basis for request for services
8. Plan for services, updated as appropriate; treatment plan, supervision plan, intervention schedule, community interventions, consultations
9. Health and developmental history

For each substantive contact with a client:

1. Date of service and duration of session
2. Types of services; consultation, assessment, treatment, training
3. Nature of professional intervention or contact; treatment modalities, referral, phone contact
4. Formal or informal assessment of client status

Other specific information that can be included:

1. Client responses to professional interventions
2. Current risk factors in relation to dangerousness to self or others
3. Other treatment modalities employed such as medication or biofeedback
4. Emergency interventions; hospitalization, family involvement
5. Plans for future interventions
6. Information describing the qualitative aspects of the professional/client interaction
7. Prognosis
8. Assessment or summary data; behavioral logs, structured interviews
9. Consultations with or referrals to other professionals
10. Case-related telephone, mail, and e-mail contacts
11. Relevant cultural and sociopolitical factors

3. Confidentiality of Records

Confidentiality of patient records is mandated by law, regulation, and ethical standards (APA Codes 4.01; 6.02) Clients expect and should always get confidentiality and privacy which promotes trust. The psychologist is charged with developing procedures to protect the physical and electronic records from friendly and unfriendly hands which includes educating employees and staff members who have access to patient records. In unusual or complex situations where disclosure of records is unclear, psychologists should consult and document before taking any action. For example, in the case of couple, family, minor, or group therapy, the psychologist is required to seek legal consultation.

4. Disclosure of Record Keeping Procedures

When possible, psychologists inform clients of the way in which they keep patient records. Clients should know who may have access to the patient’s record, specific consideration given the setting and facility, and what might occur to patient records should litigation occur.

5. Maintenance of Records

Psychologists strive to maintain accurate and organized records that are systematically updated. Records should be thorough and efficient and available for retrieval. Methods should be logical and consistent with an appropriate labeling system. A specific problem is responding to subpoenas and release of records when former records are included. It is generally necessary, according to this document, to re-release any third party information included in the record, for example former therapist records. Psychologists should give patients plenty of time to object to such a subpoena.

6. Security

Psychologists take responsible efforts to avoid breaches of patient records whether hard copies or electronic records. The council discusses two considerations:

Maintenance. Psychologists are encouraged to maintain paper records such that they are protected from destruction. Electronic records stored on electronic media may recall special protection from damage.

Access. Records should be stored in locked cabinets or other containers housed in locked offices or storage rooms. Security procedures should be used when records are kept via electronic media. For example, passwords, firewalls, and encryption should be used for patient protection.

7. Retention of Records

Psychologists must retain records for the period required by legal, regulatory, institutional, and ethical requirements. Since a number of reasons can require the psychologist to release records after termination of treatment, it is especially important to maintain and retrieve records in a timely manner. “In the absence of a superseding requirement, psychologists may consider retaining full records until 7 years after the last date of service delivery for adults or until 3 years after a minor reaches the age of majority, whichever is later” (APA, 2007).

8. Preserving the context of Records

Records may have a significant impact on the lives of clients such that the information in the records may no longer be relevant to the client or former client, yet it is still in the record. A