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This is a beginning to intermediate level course. After completing this course, the California psychologist will be able to:
The material contained in this course is the professional and personal understanding of its author’s interpretation of the experts that are referred to throughout the course. Should any person wish to use this material for any purpose other than basic continuing education as it is presented here, that person should seek the original sources for his personal understanding.
The authors cited herein are accepted and published experts in the field of legal and ethical issues in psychology. Included are current opinions, case law when applicable, California statute, and interpretations of the new APA Ethics Code, especially the work of Celia B. Fisher, Ph.D., Chair of the APA Ethics Code Task Force that completed the current revision (Fisher, 2003).
This 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!
The California licensing board requires that all psychologists remain current on California Laws and Ethics and certify under penalty of perjury that they have done so during every two-year license renewal. Since this is not a one-time requirement, this course will continue to be a fundamental course updated regularly and including a brief basics review, and updates and expansions to current standards of care and ethics.
Throughout the course, you will be asked to take brief quizzes that are aimed at helping you learn and retain the material.
When instructed to do so, the reader may use the link provided to review the specific APA Ethics Code for answers to the quiz questions. Alternatively, the Ethics Code can be printed for reference from the APA website: Principles of Psychologists & Code of Conduct (APA, 2002).
References for material will be given throughout the text, with a reference list at the end of each section.
Question 1
Our American system of law is separated into two divisions: Federal law and State law. In most cases, Federal law supersedes State law except in special situations. Can you think of an example of this exception?
State Law supersedes federal law:
(c) is the correct answer. With regard to HIPPA (to be discussed in another section), State Law supersedes Federal Law if the State law provides more protection to the patient’s records than do the provisions of the Federal HIPPA laws.
The complete title of the APA ethics code is Principles of Psychologists & Code of Conduct (APA, 2002). The need for an ethics code arose after World War II when psychologists developed group tests to help the armed services quickly evaluate draft eligibility, and to provide mental health services to returning soldiers. After numerous task force revisions and draft approval by the membership, the first code was adopted by the APA in 1952 and published in 1953.
The purposes of the current ethics code are many, including establishing the integrity of the profession, providing a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and being able to adjudicate (APA, 2002; Please see Fisher, 2003 for most recent interpretation of 2002 code).
There are five important reasons for having an ethics code:
In other words, without an ethics code, psychologists would be vulnerable to outside regulators who might use their powers of adjudication in cases of ethics violations. Worse still, outside regulators might use standards that are not applicable to psychologists in this adjudication.
The current code was adopted in 2002 and took effect in June 2003. This course will refer to the current code.
There are two primary sections:
|
Aspirational (unenforceable) |
Enforceable |
|
Introduction |
Numbered Codes |
|
Preamble |
Ethical Standards |
|
General Principles |
1.01 to 10.10 |
|
A-E |
82 Codes |
The Introduction section discusses the intent and organization of the code and provides guidance only. It is not a legal document. Even though some states adopted the 1992 Code as legal and binding, the creators did not have this in mind. It looks at “reasonable” prevailing judgment and considers the dictates of one’s own conscience, and strongly encourages professional consultation with colleagues.
The Preamble section discusses psychologists’ commitment to science in the improvement of the lives of others. Psychologists have a lifelong effort to act ethically.
The General Principles AE guide and inspire psychologists to act with the very highest ideals considering patient welfare as the primary concern.
The 82 numbered standards are the only enforceable part of the Code. These can be used in any state or APA ethics committee adjudication proceedings, and have been used in malpractice suits and licensing board violations.
Question 2
The APA Code of Ethics is a legal document:
Question 3
The Aspirational (unenforceable) section of the code contains:
NOTE: See Section A – Introduction to APA Ethics Code for review of answer material below:
The answer to question 2 is, of course, (b). As mentioned earlier, the document is not to be used as a legal document, but as a guideline and set of standards.
The answer to question 3 is (c), as explained above.
There are four elements of a malpractice suit. All four must be believed to have been met for an attorney to prevail in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, are reflected in out-of-court settlements.
A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether the psychologist has breached the standard of care (Black’s Law Dictionary, 1996). (Standard of care will be defined below)
Duty of Care: A duty of care arises when there has been an agreement between the psychologist and the client that they will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because a patient will develop an assumption he has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for longer-term therapy? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavior model of treatment? If the parties have not decided if they wish to work together by about the third session, the civil court may decide for them that a “duty” of care has been established. The exchange of money alone does not establish a duty; however, if there is nothing else for the court to consider, it may look at financial matters in an attempt to establish responsibility.
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 – what any other trained psychologist with reasonable experience would do, or the minimum below which a psychologist must not fall (Stromberg, et al, 1988; Caudill & Pope, 1994). Generally, the standard of care is defined by state statute (e.g., Penal Code 11166, child abuse report law) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a “collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and it must be followed just as closely as law that has progressed through the legislative process.
Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest” (p. 564). These authors go on to explain that competent treatment can lead to unsuccessful results without the treatment having been negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used, a judgment call that proves wrong is not actionable” (p. 564).
Demonstrable Harm: Can harm be shown to have occurred to the “victim”? Was anyone hurt or harmed? If so, what are the damages? The idea is to return a harmed individual to the condition in which she existed prior to the harm. This can be done in only one way – in a civil suit: In many cases of demonstrable harm with psychologist defendants, the damage claimed is psychological in nature. Therefore, it is much harder to prove and harder to approximate the financial award to the victim.
Proximate Cause: Proving that the psychologist’s wrongful conduct caused the damage and that it was the direct or proximate cause of the harm of the plaintiff’s injury is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychologist for their acts that “caused” the damage to the client. The question is, would the client have been damaged if the psychologist had done anything differently? When injury is alleged to have occurred, the client must still prove that the alleged injury is caused by the psychologist’s breach of the standard of care. In 1991, the California Supreme Court adopted a definition of proximate cause easily understandable to lay people – the “substantial factor” element. Was the therapist’s action a “substantial factor” in causing the patient’s injury? (Caudill & Pope, 1995).
Jenny has been Dr. Brown’s client for five months. She calls Dr. Brown saying she is suicidal and wants to “do herself in.” Dr. Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks, and to “get social and meet a new lover” so that she can have a good time and “be normal.”
Later, Jenny feels so bad she takes the entire bottle of her antidepressants along with a bottle of vodka. When she calls Dr. Brown the next day feeling suicidal and depressed, he tells her, “Look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now just relax.”
Jenny takes the rest of her medication and winds up in the hospital. Her family consults an attorney who is considering filing suit based upon the four elements of a malpractice suit.
NOTE: See Section A – Elements of Malpractice for review of answer material below:
Question 4
Since Jenny and Dr. Brown had been seeing each other in a therapeutic environment, the first element of a malpractice suit has been met because there was:
Question 5
Dr. Brown was probably not adhering to the current ethics code for psychologists, the statutes of his state, or the recent case law. Therefore, he probably:
Question 6
Since Jenny wound up in the hospital after talking with Dr. Brown, this probably is evidence of:
Question 7
If Jenny would have been fine if her psychologist had treated her in a more appropriate manner, this is proof of:
Questions 4-7 in order: 4 – a duty of care is established when a client-therapist relationship is developed or created. When Dr. Brown failed to follow the ethics code of his profession, he was 5 – breaching the standard of care of his profession. The answer to question 6 is demonstrable harm. Since his patient wound up in the hospital, harm could be demonstrated. If it could be proven (which is very difficult to do) that the patient would not have suffered damages (or they would not have been as serious) had Dr. Brown done anything differently, then 7 – proximate cause can be claimed by the attorney of the patient.
Baerger (2001) notes, “the fear of being sued may adversely impact clinicians more than the lawsuits themselves” (p. 359). Estimates of the chance of being sued for malpractice range from 1% to 12%, depending upon the accusation (Baerger, 2001). Experts in legal and ethical matters agree that the methods of minimizing the risk of a malpractice suit (Baerger, 2001; Caudill & Pope, 1995; Welfel, 2002; Bongar, Maris, Berman & Litman, 1998; Clayton & Bongar, 1994; Cranston et al., 1988) are:
There are numerous elements to be taken into account when a new client calls for treatment. There are five main factors that must be considered regardless of who is on the other end of the phone or who is seeking therapy. These “five always” can be represented by the shortcut, CCARQ.
C….Culture
What is the culture of the person seeking treatment? Lee and Richardson (1992) tell us that every therapy relationship is a “cross-cultural” relationship because everyone who enters a psychologist’s office, no matter who they may be, is of a diverse culture from the psychologist. In other words, the psychologist must consider the differences between the two individuals in every case because every person walking into a psychologist’s office is of a different culture than the psychologist.
C….Counter-transference
This means that every client must be considered for the possible impact she has on the psychologist. The psychologist must be able to intelligently evaluate his condition and his ability to handle difficult situations in order to avoid the negative effect of counter-transference on the therapeutic relationship.
A….Area of Competence
All psychologists should be able to handle all the diagnoses in the DSM, something that is simply not realistic. What this actually means is that psychologists must be able to identify their limitations, such as when they should refer a client due to lack of training, counter-transference, or inexperience. In actuality, psychologists are expected to know how to handle all diagnoses, know when to refer out, or to get proper consultation when gaining new skills.
R….Rule out General Medical Condition or Substance Abuse
It is mandatory to rule out any general medical condition or substance abuse that may reasonably be causing mental health symptoms. For example, a person who has panic attacks or any other “head-to-toe” symptoms of anxiety disorders may be suffering from a hormonal imbalance or thyroid dysfunction rather than a DSM diagnosis. General medical conditions (See Axis III in the DSM-IV-TR, APA, 2002) must be ruled out by a medical doctor prior to treating for a mental disorder.
Q….Question the Reporter
It is not uncommon for a new client to attribute her range of symptoms to another person close to her, such as a significant other or loved one. For example, the psychologist might hear, “My boyfriend is an alcoholic and I don’t know what to do,” when the primary patient is actually the person with a drinking problem.
There are four mechanisms holding psychologists accountable for our actions as mental health professionals. A brief description of each follows:
A state licensing board is the agency that “giveth and taketh away” the ability to practice psychology. It decides how many hours of continuing education must be taken to renew the license and continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychologist fails to respond to its dictates.
There are three possible ethics committees that can regulate psychologists:
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.”
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.
American Psychiatric Association. (2002). Diagnostic and Statistical Manual of Mental Disorders, fourth edition – Text Revision. APA: Author.
Gardner, B. (Ed.) (1996). Black’s Law Dictionary, (1996). St. Paul, MN: West Publishing Co.
Caudill, B., & Pope, K. (1995). Law and Mental Health Professionals. Washington, DC: APA
Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: Ethical, legal & clinical considerations. Ethics & Behavior, 4, 43-57.
Cranston, C. (et al.) (1988). Inter-professional collaboration: Who is doing it? Who isn’t? Developmental and Behavioral Pediatrics, 9,134-139.
Fisher, C. (2003). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.
Lee, C., & Richardson, B. (1992). Multicultural Issues in Counseling: New Approaches to Diversity. Alexandria, VA: American Counseling Associates.
Stromberg, C. (et al.) (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.
Privacy is suggested by the Fourth Amendment (December 15, 1791) of the Constitution of the United States. Basically, it gives people the “right to secure their houses, papers, and effects, against unreasonable searches and seizures…” (The United States Constitution). Privacy is the most basic of the three terms in this section (Cato Institute, 1776/2002).
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 ethical term that denotes a contract between the patient and the psychologist wherein the psychologist promises to keep all utterances as confidential communications, except those disclosures required by law. It is a term seen in ethics codes and standard of care documents. 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.
Evidence Code 1013 defines “Holder of Privilege” as (see website for actual laws - www.leginfo.ca.gov/calaw.html):
Question 1
You receive a subpoena for the records of Jane Doe, a current patient. In order to release the records, you need a release for the records from Jane. This falls within the area of:
Question 2
LaTesha is the sister of your deceased client. LaTesha calls you wanting her sister’s records and says she has sent you a self-addressed envelope in which you are to mail her sister’s records to her. She would appreciate you sending them as quickly as possible for her own personal reasons. Can you release the records to LaTesha’s sister? Why or why not?
NOTE: See Section B - Introduction to Privacy, Confidentiality & Privilege for review of answer material below:
For Question 1, (c) is best answer, as subpoenas are related to the release of legal documents. Even though a subpoena does not have the power of a court order, it involves the element of privilege for which there must be compliance.
Question 2 is a bit more complicated, as the best answer is (d), personal representative. However, if there is no personal representative of record, the court will decide or appoint one; thus, (c) could be a viable answer in some cases where there is no personal representative in the will of the deceased.
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.
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).
The APA Ethics Code Section 4 Privacy and Confidentiality lends guidance here. Please briefly review now for future reference.
APA 4.01 Maintaining Confidentiality reminds psychologists to take reasonable precautions to protect confidential communications gained in the course of their work.
After going through the legislative process, a law is given a number such as Evidence Code 1024 or Penal Code 11166. Once it is codified in this manner, psychologists are obligated to follow the dictates of any laws that are relevant to psychology. However, equally important and just as powerful is “case law,” defined as “the collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). In essence, case law must be followed as closely as state legislation because it represents precedents. This is relevant here as Tarasoff began in California as case law.
In 1976, the California Supreme Court Justices made some important rulings that forever changed the responsibilities for all mental health professionals. Prior to the Tarasoff decision, Evidence Code 1012 required psychologists to keep all utterances confidential and Evidence Code 1024 required psychologists to disclose to a potential victim possible threats made against that person to the psychologist. Evidence Code 1024 further suggested psychologists disclose possible danger to property or danger to self (i.e., suicidal activity).
These codes modified after Prosinjit Podder, a young man from India, fell hopelessly and madly in love with Tatiana Tarasoff. He later became outraged with dissatisfaction when her level of commitment to the relationship did not meet his own. He murdered Tatiana after confessing his desire to cause her bodily harm to his psychologist at Cowell Memorial Hospital, an outpatient clinic serving UC Berkeley.
This resulting Supreme Court case law ruling in California (1976) was later codified in 1985 as:
Communicated to psychotherapist directly by patient
Serious threat of physical harm that is imminent
This will be discussed later in this section
Reasonably identifiable victim
Once the threat reaches the threshold of the three requirements in CC 43.92(a) above, then CC 43.92(b) must be followed as quickly as is reasonably feasible:
Warn potential victim(s)
Notify authorities
Not codified, yet clear in the Tarasoff decision of 1976:
The Tarasoff Supreme Court Justices did not enumerate the above steps and, in fact, stated psychotherapists are to “take whatever other steps reasonably necessary under the circumstances” (Tarasoff, p. 426).
Question 3
Frank calls your office saying, “My roommate Bill is your patient! He is heading for McDonald’s where he works! He has a gun and he is going to shoot the guy who fries up the burgers! You gotta do something!!!”
Is this Tarasoff?
NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:
If you answered (b), you realized that the roommate told you about Frank being a danger to the fry cook; thus, it is not Tarasoff. Tarasoff dictates the therapist be told the threat against the identifiable victim directly from the dangerous patient. Here, the roommate told you of the threat.
Obviously, this is an ethical situation and you would instruct the caller how to proceed to help save the life of the fry cook (e.g., tell caller to inform the police or call McDonald’s management). Caution! Do not disclose the confidentiality of your patient. This could be a crank caller and not the real roommate. Use caution and do not panic in a situation where Tarasoff may need to be invoked.
The APA Ethics Code Section 4 Privacy and Confidentiality lends guidance.
Here, the code allows psychologists to disclose confidential information, when permitted by law, to obtain a needed professional consultation, or to protect self (the client) or others from harm.
The fascinating thing about case law is that higher courts love to be legislators! They like to make law, not just make rulings on law.
The role of case law is not to assign blame to any psychologist for making an “error,” but to see what the fact-finders did that added to the standing law making new case law. This new case law is known as “precedent” and should generally be followed thereafter. Thus, whenever we discuss case law, we are not interested in mistakes made or blame found; we are interested in new precedent set in order to identify our new responsibilities.
In the Hedlund case, an unmarried couple received counseling from an Orange County Counseling Center intern. The man made a threat to the woman during a session; he eventually acted on this by shooting her while she sat in her car shielding her 3-year-old son from the bullet.
The judge declared in the appeal that the son was owed a duty to be protected by the Counseling Center psychologists (along with protection for the mother) under the dictates of Tarasoff. Thus, the extension to Tarasoff of warning “all foreseeable bystanders” became precedent but not statute.
Since it is not feasible to telephone a 3-year-old child with a Tarasoff warning, the court felt it was reasonable to expect that a child that young would have been with his mother when the threat might be carried out. Therefore, in subsequent similar cases, foreseeable bystanders are owed a Tarasoff duty. Once again, we are to use the “reasonable psychologist” standard of care — what would a reasonable psychologist do in your situation?
In this famous case, an adult man told his psychologist he was so angry with his father he was going to burn down part of the father’s farm. The psychologist in Vermont evaluated this situation for Tarasoff and decided it did not meet the threshold for a mandatory report. Later, the patient did burn down an uninhabited portion of the farm. The court disagreed with the psychologist, and ruled in favor of the father in deciding he should have been given a Tarasoff.
This is the only ruling that seems to have survived the years with regard to the damage to property section of California Evidence Code 1024 in which psychologists may include damage to property under the Tarasoff mandate. In sum, it seems that the use of arson in an attempt to damage property could be considered a Tarasoff mandate given the Peck ruling of 1983.
Once again, the standard of care is to consult with an expert (ethics expert, attorney, your malpractice insurance company, etc.) and document your decision-making method prior to breaching the confidentiality of a patient.
This California case is known as the “Veteran’s Administration (VA)” case in which a man being treated as an outpatient at a local VA murdered his girlfriend. The precedent set here is the judge ruled that, in settings where it is possible, psychologists are required to attempt to seek the past therapy records of patients they are treating who may be dangerous to others.
Basically, in the patient’s previous VA treatment records, it was noted he had threatened his former wife with bodily harm. From this precedent, psychologists must either seek former records when treating dangerous patients or their document attempts to do so.
Karen Scancarello was a very troubled young woman who had severe problems with depression and suicidality for several years. After driving her car into a tree, purposely ingesting fifty halcyon tablets, and attempting to strangle herself, she was admitted to the University of Southern California (USC) medical center. Previously, she had been treated by Drs. Allen and Pitts, two psychiatrists at USC, for medication management (Jensen, 2005).
Ms. Scancarello insisted on entering an eating disorders inpatient program at Northridge Hospital after gaining weight when her physicians gave her Prolixin injections rather than oral medication due to her tendencies to overdose on oral medication.
Her physician at USC, Dr. Allen, forbade her to enter the program, telling her she was inappropriate for it due to her suicidal ideation and constant, serious attempts to take her own life. When she went to the director of the eating disorders program, Dr. Gross, in an attempt to enter the program despite her psychiatrist’s protestations, the eating disorders physician contacted the USC treating and prescribing physician. Dr. Allen failed to inform Gross of Scancarello’s severe suicidal behavior, despite his earlier extreme objection to her appropriateness for the eating disorders program. She was then admitted into the eating disorders program as an inpatient.
Unfortunately, she sneaked in Nardil that her mother had failed to confiscate, and she quickly overdosed. After five weeks in a coma, she was left with permanent brain damage. She sued Northridge, and Dr. Gross, and ultimately won $30,000 from the hospital and $399,000 from Dr. Gross. Dr. Gross cross-complained against Dr. Allen and won. The California appellate decision against Dr. Allen included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers (here, Dr. Gross) when the patient is dangerous to self.
Jensen (2005) notes that “in Gross, the Court of Appeal affirmed the jury’s verdict that Dr. Allen had been negligent by failing to disclose certain information to Dr. Gross (the subsequent caregiver). The Court of Appeal reached this conclusion by examining the cases through the lens of the ‘special relationship’ that a psychiatrist has with his or her patients” (p. 25). In other words, the decision does not only apply to medical doctors or psychiatrists, but to all psychotherapists, due to the special relationship between the patient and psychotherapist.
Meyer (1997) discusses this case with regard to psychologists, even though it originally involved a psychiatrist, because this is a California case. Meyer states, “Referring dangerous patients is a game where it is the responsibility of the pitcher to signal to the catcher just what sort of patient is being thrown the catcher’s way. This aspect of Tarasoff is less a duty to warn than a duty to inform” (p. 369).
Use caution here when exchanging information about a suicidal patient without release of information from that patient.
In Bellah, a California psychiatrist concluded that his young adult patient, who was a serious drug addict, was suicidal, but the psychiatrist chose not to inform her parents (for reasons that are not discussed in the case). The patient eventually overdosed, and the parents sued with the goal of extending Tarasoff, or duty to warn of her dangerousness, to suicide.
It appeared that all three requirements of Tarasoff were met:
1. Communicated Directly by Patient to Therapist
The threat had been continuously communicated directly to the psychiatrist by the patient. Tammy Bellah told him she was doing drugs on a consistent basis and did not intend to stop
2. Serious Threat of Physical Harm that was Imminent
Consistent drug use throughout the treatment with Dr. Greenson
3. Identifiable Victim – “with a moment’s reflection”
Tammy Bellah, the patient herself
The Bellah court refused to extend Tarasoff to suicide. The court ruled that Tarasoff was meant to protect a third party victim of the psychologist’s patient, not the patient himself. Thus, Tarasoff was not extended to suicide in 1978. Indeed, in a recent search there were no cases — although one may exist — where Tarasoff had been formally extended to include suicide such that it has become case law.
However, Meyer (1997), in his analysis of Gross v. Allen (1994) concludes, ”Bellah has fostered a ‘false sense of security’ all these years.” Meyer feels the Tarasoff court found an implicit “duty to protect” suicidal patients by intervening to prevent suicide. ”All along in the original Tarasoff decision, and that Gross held that Tarasoff does not state…a therapist may be silent when to speak may save the life of his patient. To the contrary, to the extent that Tarasoff considers the matter, it finds a duty to speak.” (p. 367.)
What does this mean to psychologists? Meyer writes that Tarasoff was not extended to include suicide in the Bellah case, not because the court believed it should not be, but because the statute of limitations had run out for the case to be considered. If this is indeed true, then, since Bellah will not be retried, we are left with a good deal of uncertainty. Thus, extending Tarasoff to suicidality has not been formally tried in a court setting, with the exception of Gross v. Allen.
Psychologists have always handled suicidal patients with proper care, yet not the same care as Tarasoff situations. If Meyer’s summation is correct, then suicide may be treated as a Tarasoff situation after all. At present, the safest approach is to consult with one’s insurance carrier’s legal department and the American Psychological Association, then document the consultation.
On the other hand, Jensen (2005) posits that the Bellah court decided that Tarasoff did not apply to suicidal patients. Jensen states that the Bellah court declared, “We conclude that Tarasoff requires only that a therapist disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or mere property damage (p, 24). Jensen continues: “The Court did not want to create another mandated exception to confidentiality because it believed the exception could impede access to mental health services” (p. 24).
Once again, these are the opinions of two experts and might not be considered case law or standard of care at this time in your state. If you are faced with this dilemma, remember to consult with an expert and document the consultation in the patient’s file.
The chart below is divided into three categories of dangerousness: Tarasoff, where all three requirements are met; Homicide, where only one or two requirements are met; and Suicide, which does not invoke Tarasoff under Bellah (1978).
|
TARASOFF |
HOMICIDE |
SUICIDE |
|
Mandated to breach confidentiality |
Permitted to breach confidentiality |
Permitted to breach confidentiality |
|
- warn victim(s) |
||
|
Mandated to take steps to prevent threatened danger |
Mandated to take steps to prevent threatened danger |
Mandated to take steps to prevent threatened danger |
NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:
Question 4
Joe tells you he is going to kill his brother with a gun from his collection on New Year’s Eve and today is September 2. Is this Tarasoff?
If you guessed (c), you are correct. Only two requirements are met — he told you directly and his brother is identifiable. Three months in advance is not imminent danger.
Question 5
Your patient, Carrie, tells you she is so angry with her boss she wants to
“mess around with the brakes on his car.” When you investigate,
she tells you she is only “blowing off steam,” and she would never
do anything like that.
What should you do?
The best answer here is (a). It is too soon to invoke Tarasoff (the second answer) as you would take intervening steps first (see above discussion of such steps). At this point, hospitalization is nearly impossible without patient permission; thus, the third answer is inappropriate. The last answer is a subset of the first answer, thus the first response is a more inclusive.
TARASOFF – POST-EWING
Ewing v. Goldstein (2004), Cal.App.4th [No.B163112.Second Dist., Div. Eight. Jul.16, 2004]
The Facts
David Goldstein was a marriage and family therapist who was treating Geno Colello, a former member of the Los Angeles Police Department, between 1997 and 2001, for work-related emotional problems and problems related to a breakup with his girlfriend. After learning of her romantic involvement with another man, Colello became increasingly depressed and despondent. Goldstein met with Colello on June 19, 2001, and spoke with him by telephone June 20th and 21st when Colello told him he was not overtly suicidal, but did admit to giving some thought to suicide. Goldstein and Colello discussed hospitalization, and Goldstein sought permission to speak with Victor Colello, Geno’s father.
Geno had dinner with his parents on June 21st, telling them he was severely depressed over his girlfriend being with another man. He told his parents he had lost the desire to live and he was extremely resentful toward the new boyfriend. He also told his father he could not handle it, and was considering causing harm to the new boyfriend. Victor Colello contacted Goldstein, telling Goldstein his son Geno was dangerous to himself and to the boyfriend. Goldstein told Victor to take Geno to Northridge Hospital, where Goldstein arranged for Geno to receive psychiatric care. Geno Colello was voluntarily admitted on the evening of June 21st and was treated by Gary Levinson, MD, a staff psychiatrist.
The following day, Levinson planned to release Colello. The father, Victor, contacted Goldstein reporting that Geno was being released by Gary Levinson, MD. Goldstein, who had not yet spoken with Levinson, contacted Levinson to explain to him why Colello should remain in the hospital. Levinson insisted Colello was not suicidal and would be discharged despite Goldstein’s urging Levinson to reevaluate Colello and keep him hospitalized through the weekend.
Levinson discharged Colello on June 22nd. Goldstein had no further contact with his patient. On June 23rd, Colello murdered the new boyfriend, Keith Ewing, and then committed suicide. Keith’s parents sued Goldstein for wrongful death based upon professional negligence. It was 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.
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:
| TARASOFF | ADDED BY EWING | INTERPRETATION OF EWING |
|
Communicated directly to therapist by patient For the purpose of advancing the patient’s therapy |
Or by the patient’s immediate family member |
“Reliable other” not only family member |
|
Serious threat of physical harm |
Grave bodily harm |
Means the same thing |
|
Identifiable victim “with a moment’s reflection” |
No changes |
No changes |
Experts and courtrooms continue to accept that psychologists CANNOT predict with any certainty who will be dangerous or when (for example see Bednar, R., Bednar, S., Lambert, M., & Waite, D., 1991; Otto, 1992). Indeed, the methods for assessing suicide are far more acceptable in court cases than are those for homicide. “Nowhere in the research literature is there any documentation that clinicians can predict dangerous behavior beyond the level of chance” (Stromberg et al, 1988, p.522). That being said, the following is a compilation of input from various sources that is relevant to the assessment of homicide, Tarasoff/Ewing, and violence:
This is a tried-and-true and well-known suicide assessment called the SAD PERSONS that was originally developed by medical residents in a crisis situation who wanted to distinguish which patients were at risk for suicide from those who were not. Their method was reviewed once again in 1994 (Juhnke, 1994). Additionally, in April 2003, William H. Campbell, MD discussed some ideas for a revised SAD PERSONS scale eliminating the scoring system (Campbell, 2003). Juhnke has adapted the original SAD PERSONS for use with children and adolescents (Juhnke, 1996). The SAD PERSONS Suicide Assessment for Risk Model suggests:
S….Sex
Once again, research suggested that male patients are more likely to act out dangerously to self and others.
A….Age
Was once given a value that it is not given today. Now that the Internet is so available, psychologists are able to go online and research the culture and age of the client in question to establish potential.
D….Depression
Clinical depression increases suicide potential.
P….Prior History
As with assessment for violence, risk increases when there is a history of attempts.
E….Ethanol Abuse
Funnily, in 1983, the authors wanted to make the initials work, so they plugged in “ethanol” rather than alcohol, which would have made it SAD “PARSONS”! Their research indicates alcohol and drug abuse increases the likelihood of suicide.
R….Rational Thinking Loss
Potential psychosis: “A voice told me to kill myself…”
S….Support System Loss
Decreased support system indicates increased risk of suicide.
O….Organized Plan
As with violence assessment, this speaks for itself.
N….No Significant Other
Originally, this read “No Spouse” which is clearly outdated today.
S….Sickness
Has the person or a loved one recently been diagnosed with an illness or disease that has made him want to end his or her life?
The beauty of the initial SAD PERSONS is it included (and still includes) an assessment scale as follows.
The psychologist is to give one point for each positive profile answer. For example, if the patient is a male, give one point for that answer (increased likelihood as explained above) If the patient has no prior history of suicide attempts, give a zero for that answer, and so on. Then use the chart in decision-making, and consult and document as usual.
NOTE: Use caution in relying on the scoring system. For example, if the patient has a score of two points, but the points are male and organized plan, this is to be taken extremely seriously, rather than what zero to two points in the Patterson scoring system indicates.
|
SAD PERSONS ADULT SCORING SYSTEM |
|
|
0-2 points |
No real problems; keep watch |
|
3-4 points |
Send home but check frequently |
|
5-6 points |
Consider hospitalization invol or vol, depending upon your level of assurance patient will return for another session |
|
7-10 points |
Definitely hospitalize voluntarily or involuntarily |
The SPS (Patterson et al. 1983) was revised to assess the immediate suicide risk of adolescents and teens and to provide the evaluator with suggested interventions.
The Adapted-SAD PERSONS Scale (A-SPS) was therefore designed to be used by counselors working with children and youth and is an adaptation of the original SPS. Unlike the SPS, the adapted scale encourages a prompt and thorough child suicide risk factor assessment and gives suggested intervention guidelines for school counselors (Junke, 1996, p. 252).
The ASPS is an atheoretical scale used to assess immediate suicide risk factors and to provide general recommendations about interventions for those concerned about young person’s well being. It uses the acronym SAD PERSONS taken from Patterson et al’s suicide assessment which is founded on the twin literature, using suicide risk factors identified in the research.
S….Sex
Once again, research suggested that male patients are more likely to act out dangerously to self and others.
A….Age
Older adolescents seem to have significantly higher rates of suicide than do elementary school children (Hoberman & Garfinkel, 1988). Older adolescents are able to use more sophisticated and lethal methods and have greater access to such means. Students fifteen-years-old and older should be considered at greater risk.
D….Depression
There is a high correlation between suicide and clinical depression, according to Maris (1991).
P….Prior History
As with assessment for violence, risk increases when there are previous suicide attempts.
E….Ethanol Abuse
Many researchers have found a high correlation between alcohol or drug use and suicide. (Hoberman & Garfinkel (1988) reported approximately 28% of child and adolescent suicides had consumed alcohol within twelve hours before their suicide.
R….Rational Thinking Loss
Potential psychosis: “A voice told me to kill myself…”
S….Support System Loss
Isolation and impaired interpersonal contacts correlate with teen suicide.
O….Organized Plan
As with violence assessment, this speaks for itself.
N….Negligent Parenting (children or adolescents)
Significant family stressors, parental loss, abuse, neglect, family disruptions
S….School Problems (children or adolescents)
Being teased or hounded by other kids; taunting, ridicule, disciplinary problems; deterioration of academic performance
The following are Junke’s (1996) guidelines for interventions given the potential score received after conducting the ASPS. These are merely guidelines and to be used given each practitioner’s clinical judgment on a case-by-case basis. Each client is a new and specific situation with mitigating circumstances to be taken into consideration. For more detailed information and further guidance, please see Junke’s original article.
TOTAL SCORE RANGE = 0 to 100
Clinician scores each risk factor between 0 and 10
0 = Complete Absence of Risk
10 = Significant Manifestation of Risk
Gender (Sex), being such a significant factor, is scored:
Male = 10 points
Female = 0 points
|
SAD PERSONS CHILDREN AND ADOLESCENT SCORING SYSTEM |
|
|
0-29 |
|
|
30-49 |
|
|
50-69 |
|
|
70 or more |
|
Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:
Students reporting organized suicide plans or having rational thinking loss warrant immediate intervention and must be monitored. Those who are clinically depressed and deemed to be using drugs must be given appropriate counseling services (Junke, 1996). Suicide is a real danger, which undoubtedly, the ASPS will not always identify. Clinicians must be ever alert to any and all signs of suicidality in both adults and minors and continue to consult and document appropriately.
Question 6
Vignette – Danny
Danny is a 28-year-old man who has just told you his girlfriend has broken up with him. He is not particularly happy at work but continues to get up every morning, catch the bus, and get to his desk on time.
He tells you he won’t be seeing you for a few months because he has decided to take some time off work. It seems he has given many of his possessions away because he “is paring down my belongings” and “doesn’t need much anymore.”
You know Danny has been a heavy pot user in the past and that, in high school, he swallowed a bottle of Tylenol with a fifth of vodka. When you inquire about his state of mind now, he tells you he is very happy to be getting time off from work and taking a long vacation.
Do a SAD PERSONS on Danny and add up the points. What did you get? What would you do?
NOTE: See Section B – SAD PERSONS for review of answer material below:
The best answer here is (c): 6 points for male, depressed, prior attempt, drugs, no support system, no significant other.
Question 7
What would you do to further protect Danny from harm without involuntarily hospitalizing him?
NOTE: See Section B – CC 43.92 a&b for Stromberg, et al — preventative steps and a review of answer material above.
ANSWER: The best answer to this question is (c) increase frequency of sessions, increase phone contact, send him for medication evaluation, increase his support system because the “rule of least restrictive treatment” requires the clinician take steps to prevent the client from harming him or herself while providing for care that is the least restraining as possible. Case law in the 1976 California Supreme Court Tarasoff decision made this a requirement as noted by Stromberg and his group of attorneys (1988). Thus, answers (a), (b), and (d) are too narrow and incomplete.
Bednar, R., Bednar, S., Lambert, M., & Waite, D. (1991). Psychotherapy with High-risk Clients: Legal and Professional Standards. Pacific Grove, CA: Brooks/Cole.
Campbell, W.H. (April, 2004). Current Psychiatry Online. www.currentpsychiatry.com
Cato Institute. (1776/2002). The Declaration of Independence and the Constitution of the United States. Washington, DC: Author.
Gardner, B. (Ed) (1996). Black’s Law Dictionary. St. Paul, Minn: West Publishing Co.
Hoberman, H., & Garfinkel, B. (1988). Completed suicide in children and adolescents. Journal of the American Academy of Child and Adolescent Psychiatry, 27(6), 689-695.
Juhnke, G.E. (1994). SAD PERSONS scale review. Measurement & Evaluation in Counseling & Development, 27, 325-328.
Juhnke, GE (1996). The adapted SAD PERSONS: An assessment scale designed for use with children. Elementary School Guidance and Counseling, 30, 252-258.
Simon, R. (2001). Psychiatry and the Law. Washington, DC: American Psychiatric Press.
Stromberg, C. (et al.) (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.
Maris, R. (1991). Introduction. Assessment and prediction of suicide: A special issue of SLTB. Suicide & Life-Threatening Behavior, 21(1), 1-17.
Meyer, C. (1997). Expanding Tarasoff: protecting patients and the public by keeping subsequent caregivers informed. The Journal of Psychiatry & Law, fall, 365-375.
Otto, R. (1992). The prediction of dangerous behavior: A review and analysis of “second generation” research. Forensic Reports, 5, 103-133.
Patterson, W., Dohn, H, Bird, J., & Patterson, G. (1983). Evaluation of suicidal patients: The SAD PERSONS scale. Psychosomatics, 24, 343-349.
There is no question that the primary concern of all psychologists is patient welfare. Indeed, General Principle A, Beneficence and Nonmaleficence, states, “psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons…” (review General Principle A now).
It is important to do a comprehensive intake either over the phone or at the first appointment in order to avoid subsequent problems such as patient abandonment, improper termination, and improperly establishing a duty of care (See Section A for details on Duty of Care).
For in-depth discussion of rural practice issues see
Campbell & Gordon, 2003
The issue of rural versus large city practice will be discussed in future continuing education workshops at ContinuingEdCourses.Net
As you can see, with each level, you stick your neck out further.
The highest level of competence is expert. This means that the person has done research, written on, read the history of, speaks on, and/or teaches on the topic. Most psychologists are specialists in some areas (children, ADHD, depression, etc.), but may not reach the level of expert. The former California Association of Marriage and Family Therapists (CAMFT) attorney Zachary Pelchat cautions, “Keep in mind that by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (p. 25.) All are competent to practice by virtue of being licensed to practice. But by using the term specialist, the clinician is implying he has more knowledge in the area, and is practicing a “higher standard of care when dealing in their specialty…. Keep in mind… when by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying himself as a specialist” (Pelchat, 2001, p. 25),
As early as 1914, Justice Cardoza commented, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” (Schloendorff v. Society of New York Hospital, 211 NY.125, 1914).
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. Fridhandler, in the California Psychological Association Division I Expertise Series (2004), points out
The client or patient should have enough information to make a knowledgeable, informed choice about whether to proceed with the services offered by the psychologist. The psychologist may make a judgment about what information a specific client/patient is likely to find relevant in making this decision. Accordingly, it is appropriate to tailor the information to the client/patient’s particular needs and ability to understand. The psychologist should answer all client/patient questions relevant to the services being offered and their potential effect on him or her. (p. 1)
Fridhandler notes the psychologist must abide by the APA Ethics Codes, document that the client/patient was fully informed about services offered and rendered, and that informed consent rests upon the assumption that the client/patient has the ability to make such a decision whether or not to accept services. “Court decisions have established a legal consensus about additional aspects of informed consent” (Fridhandler, 2004, p. 2). Case law, says Fridhandler, has established that clients/patients must be told the risks, benefits, and alternatives of treatment, along with the fact that treatment is strictly voluntary.
There are two basic form of civil liability regarding informed consent according to Corey, Corey & Callanan:
Berner (1998) agrees with the APA (former 1992 Code 4.02 but not retained in 2002) when she discusses the elements necessary for informed consent to be viable.
Finally, as Guithiel said in 1980, “If it isn’t written down, it didn’t happen.” Document in the patient’s chart that informed consent was given, the patient agrees to treatment voluntarily, and has the capacity to consent voluntarily. Most individuals have forms that cover these issues, especially with HIPPA provisions being added recently (more on HIPPA later).
Question 1
George comes in for therapy and is clearly under the influence of a substance. Can you have him sign an informed consent form?
NOTE: See Section C – Informed Consent AKA Consent for Treatment for review of answer material below:
Of course, (c) is the correct answer. When a person is under the influence, there are several issues, not the least of which is the inability to give informed consent. It would not be a valid consent, as George did not have the current “capacity” to give a valid consent.
APA 4.02 Discussing the Limits of Confidentiality
The limits of confidentiality are:
This principle, in section (b) defines the actual limits of confidentiality as:
APA 10.01 Informed Consent to Therapy
Stromberg et al (1988), a group of eight attorneys who were consulted by the APA in the 1980s, said it well: “Detailed records usually help rather than hurt a health care professional in defending against claims… sloppy, sparse records … appear unprofessional, uncaring, haughty or deceptive” (p. 487). The primary purpose in keeping records is continuity of patient care in the event the psychologist must transfer care to another professional. Other purposes include review of the delivery of services, self-monitoring, and documentation of what is working and progress. In essence, properly kept records enhance the treatment and protect the psychologist from litigation and spurious ethics and licensing allegations.
Experts suggested what should be the contents of patient records prior to HIPPA (Canter, Bennett, Jones, & Nagy, 1994; Bennett, Bryant, VandenBos, Greenwood, 1990; APA Monitor, Vol. 28, 1994). However, the basics remain the same:
Under Business & Professions Code 4982(v), 4992.3(s), “It is unprofessional conduct to fail to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered” (effective 1/1/00). California Health & Safety Code 123145 requires that certain entities retain patient records at least seven years after cessation of services or at least one year past majority. What this actually requires is that clinics, hospitals, and other entities mentioned in this law must keep the records of minors at least one year after majority (18 years old) and a minimum of seven years.
NEW CALIFORNIA LAW
Many states are in the process of updating laws regarding private practice record retention. California has been one of the states that have never had a statute for private practice record retention. The California legislature passed Assembly Bill 2257, which was recently signed into law; this is a records-retention law for psychologists, effective January 1, 2007. It states:
“A licensed psychologist must retain a patient’s health service records for a minimum of 7 years from the patient’s discharge date, and would also require a minor patient’s records to be retained for a minimum of 7 years from the date the patient reaches 18 years of age. Violation of the bill would be a crime…”
Up until this new legislation, there was no California law that dictated how long private practice clinicians were to retain patient records. Experts maintain that psychologists should follow the Specialty Guidelines for the Delivery of Services (1981) when there is no state statute that gives absolute guidelines to follow (Caudill & Pope, 1995; Stromberg et al., 1988; Bennett, 1990).
In other words, in states where there are no state laws for private practice record retention, psychologists are to follow the Specialty Guidelines of 1981, despite their old age!
NOTE: California recently passed an Assembly Bill that went into effect January 1, 2007 that states the following:
AB 2257 Signed Into Law for Psychologists
Record Retention Bill takes effect 1/1/07
Seven year retention requirement as a minimum
In California, when a client begins therapy in a private practice setting on or after January 1, 2007, records should be kept after cessation or termination of treatment for 7 years, and SEVEN years after majority. Thus, psychologists in California must keep records for more recent clients for seven years, and follow the fifteen-year rule suggested by the APA for all clients who began treatment in private practice prior to beginning January 1, 2007.
Question 2
What does APA 4.02 have to say about when psychologists should get informed consent from a patient?
NOTE: See Section C - APA Code 4.02 Ethics Codes applicable to informed consent for review of answer material below:
The best answer is (a), as in 4.02 section b despite the fact that “outset” is not clearly defined as a specific number of sessions in the Code.
There are many good treatment planners aiding clinicians in preparing chart notes (see The Adult Psychotherapy Progress Notes Planner by Arthur E. Jongsma, Jr.; Therapist’s Guide to Clinical Intervention by Sharon L. Johnson) for detailed descriptions. All psychotherapy notes can be subpoenaed by court order. There is no such thing as what are sometimes called “shadow notes,” which refer to personal notes the psychologist takes and uses for consultation, counter-transference consultation, and peer supervision groups. Any notes that have to do with a specific patient may be subject to subpoena (Caudill & Pope, 1995; Thompson, 1990; Bennett et al., 1990). In fact, Thompson (1990) notes, “Many therapists keep shadow notes containing personal speculations… the legal status of such records is largely undetermined” (p. 111). Psychologists must know case law and get consultation from experts on a case-by-case basis.
Stromberg et al (1988) take a very strong stance in this area. They note many psychologists are under the false belief that “process” notes are private and the property of the psychologist. This couldn’t be more untrue according to these attorneys (Stromberg et al (1988). However, in the terminology, “progress” and “process” notes are considered different. HIPPA now refers to “process” notes as “psychotherapy” notes.
|
PROCESS/PSYCHOTHERAPY NOTES |
PROGRESS NOTES |
|
Less for defending oneself More for documenting therapy relationship Follows one’s theoretical orientation based upon the research Thoughts, hunches, speculations |
Solid treatment plan documentation Especially in crisis situations Safety planning in event of crisis Public record of goals set & goals met Decision-making |
Question 3
Psychologists can keep their own personal thoughts about a patient in personal files at home. These are separate from “progress” notes.
NOTE: See Section C – Chart Notes for review of answer material below:
All record information is the property of the patient; there is no such thing as “shadow” records or keeping private records at home.
There are numerous courses both online and in person where psychologists can learn how to become HIPAA compliant. Here, the basics will be discussed in order to integrate record keeping into a discussion of HIPAA compliance.
The Health Information Portability and Accountability Act (HIPAA) dictates therapists follow new and complicated federal guidelines with regard to confidentiality of patient records for storage, informed consent, employee training, security of records, and certain electronic transactions of patient information. Normally federal law supersedes state law, but with regard to HIPAA, psychologists are instructed to follow whichever law most adequately and completely protects patient privacy more completely. Psychologists are required to study both federal and state laws that are applicable and decide which ones supersede the others. Fortunately, many available courses do this work for clinicians.
Electronic transmission refers to computer transmission of information and computer faxes, not telephone lines or freestanding fax machines. If you receive or send patient information via your computer, by a computer fax, or by email, you are required, under federal law, to be HIPAA compliant. If you use telephone lines for voice communication, free standing faxes, or snail mail to transmit patient information, then you are not required to be HIPAA compliant. However, if you use any billing service that does any such transactions via computer lines or computer faxes, then you are required to make your office HIPAA compliant even if you personally do not transmit information via the electronic methods included in HIPAA. Additionally, you are required to have a contract with the billing agent guaranteeing it is, indeed, following HIPAA guidelines on your behalf.
HIPAA’s purpose is to “cut back” on paperwork by using primarily computer storage and transactions. Some experts say all psychologists will eventually have to be HIPAA compliant whether or not they make electronic transactions. Stay tuned!
|
HIPAA |
HIPAA |
|
Private notes of the psychologist not readily available to insurance company and patient |
Readily available to insurance company and patient |
|
Records must be separated into two different and distinct file folders |
Records must be separated into two different and distinct file folders |
|
Subpoenable |
Subpoenable |
|
Available by Court Order |
Available by Court Order |
Question 4
HIPAA refers to a group of federal laws that supersede state laws except when:
NOTE: See Section - HIPAA for review of answer material below:
As mentioned earlier, HIPAA are federal laws that nearly always supersede state laws. The exception is when state law gives more protection to the patient’s confidentiality rights. Thus, (c) is the best answer here.
California law and HIPAA federal law do not agree on patients having access to a copy of their own health records (August 1, 2006, personal communication, Michele Licht, Esq.). It seems that California law allows access to a copy of records within 15 days, while HIPAA allows a copy of records within 30 days from written request. Since these laws are all subject to change, please check with your attorney before acting. Once a psychologist has been given written notice, the therapist has reasonably discussed the purpose of the records request, and the psychologist believes, if the request is fulfilled, there will be no harm to the patient, the following must be followed:
CALIFORNIA LAW HIPPA REGULATION
|
Access to View Records |
H&SC 123110a – Within 5 days Within 5 days |
|
Access to Copy of Records |
H&SC 123110b – Within 15 days Within 30 days |
|
Denial of Access to Records |
H&SC 123115 |
|
Summary of Records |
H&SC 123130a |
In California, the psychologist “owns” the actual file, but the information in the file is the property of the patient (Benitez & Pelchat, 2006; Bennett, 1990). Thus, the patient may view or have a copy or summary of her records at the time of her choosing. The Health & Safety Codes of California do allow for the possibility of denial of access to the records if the psychologist can document good reasons why it would be destructive to the patient to view and/or have a copy of his records. However, the patient still has the right to appoint another mental health professional (see Health and Safety Code (H&S Code 123115) for details) to receive the records on the patient’s behalf. The therapist in receipt of records may discuss the records with the patient, but may not actually give or show them to the patient.
A summary of records (H&S Code 123130(a)), versus copying the entire file, is an option that is often suggested by the psychologist. This may or may not be acceptable in court proceedings, depending upon the judge’s pleasure. The elements of a summary of records are enumerated by H&S Code 123130(b) and by Canter et al (1994):
New APA Record Keeping Guidelines, February 2007 (www.apa.org/practice/recordkeeping.html)
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.
Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:
Students reporting organized suicide plans or having rational thinking loss warrant immediate intervention and must be monitored. Those who are clinically depressed and deemed to be using drugs must be given appropriate counseling services (Junke, 1996). Suicide is a real danger, which undoubtedly, the ASPS will not always identify. Clinicians must be ever alert to any and all signs of suicidality in both adults and minors and continue to consult and document appropriately.
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
For each substantive contact with a client:
Other specific information that can be included:
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. As the client changes and the diagnosis changes, this should be reflected in the chart such that it is updated and based upon appropriate information. For example, if a client is treated during a crisis situation, or during a break up with a significant other, the chart may not reflect the client’s current status. Information that is incorrect or outdated can affect custody, work related promotion, or the ability to work at all. Therefore, psychologists work diligently to preserve information about the context in which the records were created.
9. Electronic Records
Electronic records like paper records should be maintained and designed to protect security, integrity, confidentiality and appropriate access as well as compliance with legal and ethical requirements. Psychologists should make a detailed analysis of the risks of keeping electronic records, especially for those subject to HIPAA. It is important to assure that PHI (Patient Health Information) is handled to protect privacy of patients.
10. Record Keeping in organizational settings
When working in organizational settings such as hospitals, schools, community agencies and prisons, they strive to follow all policies and procedures of the organization as well as the ethics code. Psychologists should remain cognizant of possible conflicts between the organizational setting and the ethical standards, Record ownership and responsibility is not always clearly defined and often multiple service providers have access to or contribute to a single record. This affects the degree to which the psychologist has control o
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