LEARNING OBJECTIVES

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

• Briefly state the foundation for the evolution of social work ethics
• Using critical thinking skills, apply current NASW or CSWA Codes of Ethics to three patient care ethical dilemmas
• Name the four required elements for a malpractice suit and give four tips for minimizing the risk of such a suit
• Explain the steps to take with a dangerous client, based on mandated reporting laws of Tarasoff and Ewing
• Use the 'SAD PERSONS' assessment tool to assess risk of suicide
• Describe five common boundary challenges for therapists and how to handle them
• List several pitfalls (and how to avoid them) in interviewing suspected victims of child abuse
• Address social injustice through recognizing the signs of elder abuse
• Discuss professional behavior related to one current issue of confidentiality, privilege, HIPPA, record keeping, or avoidance of fraudulent billing practices

AUTHOR DISCLAIMER

Thank you for deciding to take this course!

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

The authors cited are accepted and published experts in the field of legal and ethical issues in psychotherapy. Cited herein are current opinions, case law when applicable, California statute as examples of state statutes, and interpretations of the National Association of Social Workers (NASW) Code of Ethics, approved in 1996 and revised in 2008. When discussing situations that are strictly clinical or more pertinent to ethics codes related to clinical issues, the Clinical Social Work Association (CSWA) Code of Ethics, approved in 2006, is used in this course. You will find the website below for downloading or linking to both of these ethics codes.

Why There are Two Codes of Ethics

The NASW is designed for all social workers and uses the term “social worker” (SW) or “social workers” throughout the text. On the other hand, the CSWA is specifically designed for clinicians who are trained in the social work profession.

The terminology used in this document is “social worker” (SW), and “clinical social worker” (CSW) when there is an emphasis on clinical work. Other terms are “psychotherapist” and “therapist.”

Not a Legal Document

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 individual Social Worker to verify laws and standard of care in his or her location from time to time. If you have taken this course previously, 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

• Define the basic elements of malpractice
• Become familiar with the National Association of Social Workers (NASW) Code of Ethics and the Clinical Social Work Association (CSWA) Code of Ethics
• Compare and contrast the NASW and CSWA

INTRODUCTION TO COURSE

State licensing boards are responsible for social work licenses. The mission of all licensing boards is protection of the consumers of the state in which the psychotherapist conducts practice, and to establish and maintain standards for competent and ethical behavior of the professionals who are under the jurisdiction of that licensing board. For licensure requirements by state, see: List of state social work boards.

From time to time in this course, you will be given brief quizzes that are aimed at helping you learn and retain the material.

References for material will be given throughout the text, with a reference list at the end of each section.

How to Display or Print the Ethics Codes

To take this course you will need access to two ethics codes, one from the Clinical Social Work Association (CSWA) and the other from the National Association of Social Work (NASW). The easiest way is to click here to view the CSWA code in a separate window and click here to view the NASW code in a separate window while taking this course. You may wish to print the codes, or you may simply refer to the appropriate code window while reading the course material. Links to the codes are provided at appropriate times during the course, and will bring up a separate window.

The 2008 NASW Code of Ethics includes changes to the following sections:

• Standard 1.05(c) - Cultural Competence and Social Diversity
• Standard 2.01(a) - Respect
• Standard 4.02 - Discrimination
• Standard 6.04(d) - Social Action

Each of these standards sets down guidelines for dealing fairly and appropriately with a segment of the population that may have been typically discriminated against (i.e. sexual orientation, age, gender, color, religion, etc.). These four Standards now include the words "immigration status" in their text. In other words, in dealings with various populations, social workers respect the integrity and dignity of the immigration status of those with which they work.

Statement of Mission and Values in Social Work

According to The Preamble to the Code of Ethics of NASW:

The primary mission of the social work profession is to enhance human well being and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty.

Historically, social work has focused on the well being of the individual in his or her social context, the environment factors that create challenges to functioning, and concern for social justice and the welfare of society as a whole. Social workers strive to empower clients to address their own needs. Social workers also strive to promote responsiveness of social institutions to the needs of individuals and to social problems.

Values and ethics in social work, from its inception to the present, include sensitivity to diversity and efforts to end discrimination and oppression. Social work activities include direct practice, community organizing, training and consultation, advocacy and political action, policy development, research and evaluation.

Social work ethics derive from core values, which have guided the profession’s mission throughout its history. These core values, as stated in the NASW Code of Ethics, are 1) Service; 2) Social justice; 3) Dignity and worth of the person; 4) Importance of human relationships; 5) Integrity; and 6) Competence. Social work’s core values inform social work’s ethical theories and provide the foundation for application of these theories (Abramson, M. 1996; Loewenberg, F.M., & Dolgoff, R., 1992, Reamer, F.G., 1998). For additional reading see the reference list at the end of this section.

Six Hours of Law & Ethics Every Two Year Renewal

Many licensing boards are now requiring a one to six-hour course in Professional Ethics for every renewal of license, depending on the state. Since this is not a one time requirement in most states, this course will be a fundamental or basics course, followed each renewal period with a brief review along with updates and expansions to current standard of care and ethics.

What is a Licensed Social Worker or Licensed Clinical Social Worker?

Different states have different titles and role definitions for Licensed Clinical Social Workers. Check with your State licensing board for your correct title and role definition at: List of state social work boards. Throughout this course we will use the term Licensed Clinical Social Worker.

What is the Scope of Practice of a Licensed Clinical Social Worker?

The scope of practice of clinical social work varies by State and is defined by the State licensing boards. In general, it is defined as a service in which a special knowledge of social resources, human capabilities, and the part that unconscious motivation plays in determining behavior, is directed at helping people to achieve more adequate, satisfying, and productive social adjustments. The application of social work principles and methods includes, but is not restricted to, counseling and using applied psychotherapy of a non-medical nature with individuals, families, or groups; providing information and referral services; providing or arranging for the provision of social services; explaining or interpreting the psychosocial aspects in the situations of individuals, families, or groups; helping communities to organize, to provide, or to improve social or health services; or doing research related to social work (Pines, 2004, p. 85; Erikson & Conidaris, 2001, p. 494).

Scope of Practice and Scope of Competence

Many questions arise regarding the scope of practice of any clinician and concerning what professional practices are within the purview of the license held by that particular clinician. The scope of competence is established by education, training, and experience. A CSW must gain competence to work with various segments of the population prior to taking a client within that population. For example, one may not work with children until and unless the clinician has experience through education, workshops, or supervised training in working specifically with children.

On the other hand, the scope of practice is determined by the laws that regulate one’s license and establish the duties of the professional holding the license. Each license within the state has its own reason for existing separately and distinctly from all other licenses in that state. The legislatures require there be a reason for each distinct license with a different and varied scope of practice for each. Otherwise, there would be no need for the various licenses offered within each state (i.e., Psychology, Social Work, Marriage and Family, Addiction Counseling).

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. In HIPAA, when state law gives more protection to patient’s records

If you guessed (c), you are correct! With HIPAA (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 HIPAA laws. (You may wish to record your answer for future review.)

INTRODUCTION TO BOTH SOCIAL WORK ETHICS CODES

The National Association of Social Workers (NASW)

THE NASW CODE OF ETHICS

The national version of the ethics code (NASW) was approved by the delegate assembly in 1996 and revised in 2008. It is intended to serve as a guide to social workers who may or may not be clinical social workers, for everyday professional conduct. It has four sections, the last of which, Ethical Standards, includes 51 specific numbered standards that will be the focus of this course along with the Clinical Social Work Association (CSWA) Code of Ethics for clinicians.

The chart that follows displays the four major sections in more detail:

NASW SERVES AS GUIDE	FOUR SECTIONS
PREAMBLE	Summarizes mission & core values
PURPOSE OF NASW CODE	Overview of functions of code
ETHICAL PRINCIPLES	6 Specific core values to be followed
ETHICAL STANDARDS	6 Major numbered code sections

ETHICAL STANDARDS	DESCRIPTION
1. Social Workers’ Ethical Responsibilities to Clients	16 Standards covering everything from informed consent to sexual exploitation
2. Social Workers’ Ethical Responsibilities to Colleagues	11 Standards covering everything from confidentiality to incompetence
3. Social Workers’ Ethical Responsibilities in Practice Settings	10 Standards covering everything from supervision to record-keeping
4. Social Workers’ Ethical Responsibilities as Professionals	8 Standards covering everything from competence to soliciting patients
5. Social Workers’ Ethical Responsibilities to the SW Profession	2 Standards covering integrity of profession and evaluation of research
6. Social Workers’ Ethical Responsibilities to the Broader Society	4 Standards covering public emergencies to political action

The Clinical Social Work Association (CSWA)

THE CSWA CODE OF ETHICS

In the Preamble of this document, CSWA states:

The objective of the profession of clinical social work is the enhancement of the mental health and the well being of the individuals and families who seek services from its practitioners. The professional practice of clinical social workers is shaped by ethical principles, which are rooted in the basic values of the social work profession. These core values include a commitment to the dignity, well being, and self-determination of the individual; a commitment to professional practice characterized by competence and integrity; and a commitment to a society that offers opportunities to all its members in a just and nondiscriminatory manner (CSWA, 2006, P. 1).

The Code of Ethics of the CSWA is specific to clinical social work and will be quoted when relevant in this course. The chart below describes the contents of the CSWA Code of Ethics:

CLINICAL SOCIAL WORK ASSOCIATION	DESCRIPTION
PREAMBLE	Explanation of objective of social work
I. General Responsibilities of Clinical Social Workers	CSWs maintain high standards
II. Responsibility to Clients	1. Informed Consent to Treatment 2. Practice Mgmt & Termination 3. Relationships with Clients 4. Competence
III. Confidentiality	CSWs maintain confidentiality
IV. Relationship with Colleagues	CSWs act with integrity
V. Fee Arrangements	CSWs maintain honesty regarding fees
VI. CSW Are Responsible to the Community	CSWs practice their profession within legal boundaries
VII. Research & Scholarly Activities	CSWs maintain ethical practices in research and teaching
VIII. Public Statements	Public statements are always honest and truthful

The purposes of an ethics code for psychotherapists are many-facetted, including establishing the integrity of the profession, provision of a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and establishing the ethics committee’s ability to adjudicate (to act as judge when another social worker violates an ethics code).

There are five important reasons for having an ethics code in any profession:

• To prevent government intrusion
• To aid professional autonomy
• To avoid undue interference from outside parties
• To assert self regulation
• To protect the profession from internal discord

In other words, LCSWs without an ethics code, would be vulnerable to outside regulators who might use their powers of adjudication in cases of ethics violations. Or worse still, outside regulators might use inappropriate standards to adjudicate (judge ethical violations) when those standards are not applicable to LCSWs.

Question 2

The NASW and CSWA Ethics Codes are legal documents.

1. True
2. False

Question 3

Social workers can only work in hospitals or clinics and not in private practice settings.

1. True
2. False

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

Question 2, of course, is false (b); as mentioned earlier, the document is not to be used as a legal document, but as a guideline and set of standards.

Question 3’s answer is false (b), as explained earlier as well.

ELEMENTS OF MALPRACTICE

There are four elements to a malpractice suit, and all four have to be believed to be met by an attorney in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, 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 psychotherapist has breached the standard of care (Black’s Law Dictionary, 1996). This is also known as “negligence.” (We will define standard of care below.)

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

Breach of Standard of Care. The broad term, standard of care, refers to the level of proficiency against which any other psychotherapist’s work will be measured or compared. In other words, what any other trained psychotherapist would do with reasonable experience, or the minimum below which a psychotherapist must not fall (Stromberg, et al., 1988; Caudill & Pope, 1994).

Generally, the standard of care is defined by statutes in each State and by 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 in that State. Case law is just as powerful as statute and must be followed just as closely as law that has progressed through the legislative process.

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

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

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

JENNY VIGNETTE

Jenny has seen Therapist Brown as a client for five months. She calls Brown saying she is suicidal and wants to “do herself in.” 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 and a bottle of vodka in a suicide attempt. When she is feeling suicidal and depressed the next day and calls Therapist Brown, he tells her, “Look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now just relax.”

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

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

Question 4

Since Jenny and Therapist Brown had been seeing each other in a therapeutic relationship, the first element of a malpractice suit has been met because there was:

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

Question 5

Therapist Brown was probably not adhering to the current Code of Ethics for LCSWs, the statutes of his state, or the recent case law. Therefore, he probably:

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

Question 6

Since Jenny wound up in the hospital after talking with Therapist Brown, this probably is evidence of:

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

Question 7

If Jenny would have been fine had Brown treated her in a more appropriate manner, this could be used as proof of:

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

Questions 4-7 in order: Question (4) answer is (a) – Duty of care is established when a client-therapist relationship is developed or created. Question 5 – When Therapist Brown failed to follow the ethics code of his profession, he was (b) - breaching the standard of care of his profession. Question 6’s answer is (c) – 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 Therapist Brown done anything differently, then for Question 7, the answer is (d) – proximate cause can be claimed by the attorney of the patient.

METHODS OF PREVENTING MALPRACTICE

Experts in legal and ethical matters agree on methods of minimizing the risk of a malpractice suit (Caudill & Pope, 1995; Welfel, 2002; Clayton & Bongar, 1994; VandeCreek & Knapp, 2000; Cranston et al., 1988):

• Professional consultation (discussed later)
• Personal therapy
• Membership in professional associations
• Continuing education
• Familiarity with current treatment methods and monthly journals
• Knowledge of current standard of care
• Proper referrals (e.g., hospitalization, medication, adjunctive treatment)
• Proper documentation of patient care
• Formulation of a reasonable treatment plan

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 regardless of who is on the other end of the phone or who is seeking therapy with an LCSW. These five “always” factors can be recognized by 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 psychotherapist’s office is of a diverse culture from the psychotherapist. Additionally, it is not wise to “judge a book by its cover.” In other words, a potential client may look or sound one way, but live in a completely different multicultural family than what appears at the initial visit. One could be an African-American client with a Chinese domestic partner. Psychotherapists should never make assumptions about a client’s culture, cultural sensitivities, or those of a client’s family. Indeed, the American Psychological Association states in their 2003 Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists (APA, 2003) "All individuals exist in social, political, historical, and economic contests, and psychologists are increasingly called upon to understand the influence of these contests on individuals' behavior" (p. 377).

Counter-transference

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

Area of Competence

All psychotherapists should be able to handle all the diagnoses in the DSM, which is simply not realistic! What this actually means is that psychotherapists must be able to identify their limitations – when they should refer a client due to lack of training, counter-transference, or inexperience. Psychotherapists are expected to know how to handle all diagnoses; or to know when to refer out due to lack of expertise, competence, or desire to treat; or to 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. A medical doctor must rule out general medical conditions (GMCs) (See Axis III in the DSM-IV-TR, APA, 2002) prior to treatment for a mental disorder, especially one that includes physical symptoms. A psychotherapist cannot rule out a GMC or substance abuse in the blood stream (lab tests) because it is outside of his or her area of competence (Harmell, 1999).

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, 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 LCSWs accountable for 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 marriage and family therapy. It decides how many hours of continuing education must be taken to renew the license and continue practicing; it regulates penalties for improper practice behaviors, and it can take action if a psychotherapist fails to respond to its dictates.

Mechanism 2 – Ethics Committees

There are two possible ethics committees that regulate LCSWs; as discussed earlier in this course, these are the Clinical Social Work Association, and the National Association of Social Work. Each has separate and distinct Codes of Ethics to which social workers must adhere.

Mechanism 3 – Civil Suit for Malpractice

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

Mechanism 4 – Criminal Allegations (Attorney General Involvement)

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

REFERENCES

Abramson, M. (1996). Toward a more holistic understanding of ethics in social work.

American Psychiatric Association. (2002). Diagnostic and Statistical Manual of Mental Disorders, fourth edition – Text Revision. APA: Author.

American Psychological Association. (2003). Guidelines on multicultural education, training, research, practice, and organizational change for psychologists, American Psychologist, 58, 377-402.

Gardner, B. (Ed.) (1996). Black’s Law Dictionary. St. Paul, MN: West Publishing Co.

Caudill, B., & Pope, K. (1995). Law and Mental Health Professionals. Washington, DC: APA

Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: Ethical, legal & clinical considerations. Ethics & Behavior, 4, 43-57.

Clinical Social Work Association. (2006). Code of Ethics. Arlington, VA:CSWA

Erikson, J., & Conidaris, M (2001). California Laws for Psychotherapists. LA: Legal Books Distributing.

Harmell, P.H. (1999, Jan-Feb). Focus on Axis III: General medical conditions. The Los Angeles Psychologist.

Lee, C., & Richardson, B. (1992). Multicultural Issues in Counseling: New Approaches to Diversity. Alexandria, VA: American Counseling Associates.

Levy, C. (1982). Guide to ethical decisions and actions for social service administrators. Binghamton, NY: Haworth Press.

Loewenberg, F. M., & Dolgoff, R. (1992). Ethical issues for social work practice (4^th Ed.). Itasca, IL: F.E. Peacock.

National Association of Social Work. (1999). Code of Ethics. www.socialworkers.org/pubs/code/code.asp

Pines, M. (2004). California Laws on Counseling & Psychotherapy. Los Angeles: Legal Books Distributing.

Reamer, F. G. (1998). The Evolution of Social Work Ethics. Social Work, 43, 488-500.

Stromberg, C., et al. (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.

VandeCreek, L., & Knapp, S. (2000). Risk management and life-threatening patient behaviors. Journal of Clinical Psychology, 56, 1335-1351.

LEARNING OBJECTIVES FOR SECTION B

• Define and explain the terms privacy, confidentiality and privilege
• Apply current ethics standards 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. 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 privilege. 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 psychotherapist wherein the psychotherapist promises to keep all utterances 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 (records or testimony) in legal proceedings such as subpoenas for records or testimony.

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 psychotherapist 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 or dangerous to self or other.

Many states have laws to address special circumstances including when the patient is a minor, is incapacitated, or is unable to hold his or her own privilege:

1. Patient holds privilege – This refers to the primary patient
   Notice “parent” is not mentioned anywhere here (This will be discussed in the section on minors)
2. Guardian holds privilege - One who has legal authority for incapacitated person (p. 282)
3. Conservator holds privilege - Appointed by court for incapacitated person (p. 127)
4. Personal representative - In the case of patient death
   One who manages legal affairs because of incapacity or death (Black’s Law Dictionary, 1996, p. 541)

Exceptions to Confidentiality

Dr. Steven Behnke serves as the Director of the American Psychological Association’s Ethic’s Office and is also an attorney. He writes numerous books and articles and has an expertise in legal and ethical issues in psychological issues. Below is a list of exceptions to confidentiality Dr. Behnke discusses in one of his books. Please forgive the sections where there are direct quotes taken from his book where he addresses only psychologists rather than the general population of psychotherapists.

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 therapist a “waiver” to release information to a third party, the therapist 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 psychotherapist 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 psychotherapist 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).

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.

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 from Jane for the records. 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 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?

1. Yes, because the sister is the current holder of privilege
2. Yes, because you are the current holder of privilege and you can release
3. No, because the court has to decide who is holder of privilege
4. No, because the personal representative is the holder of privilege

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 still must be attended to, and it involves the element of privilege.

Question 2 is a bit more complicated, as the best answer is (d), personal representative. However, if there is no personal representative of record, the court will decide or appoint one; therefore, (c) could be a viable answer in some cases where there is no personal representative in the will of the deceased.

SOCIAL WORK ETHICS CODES THAT APPLY TO CONFIDENTIALITY

NASW Code of Ethics

Standard 1.07(a-r) – Privacy and Confidentiality

Since this is such a long code with eighteen sections, it is incumbent upon each individual social worker to take the time to review this standard him or herself. However, a brief summary is given below.

• SWs do not solicit information from clients unless they wish to disclose such information
• SWs need valid consent to disclose any private patient information
• SWs may breach in cases of danger to patient, others, etc.
• SWs should try to give informed consent regarding disclosures
• SWs should discuss limitations to confidentiality prior to treatment
• SWs are cognizant of the difficulties of confidentiality with multi-client situations (e.g. group, couple, family)
• SWs inform patients about disclosures to referring employers
• SWs do not disclose information to third party payers without permission
• SWs do not discuss confidential information in public places
• SWs protect confidential information in legal procedures
• SWs protect confidential information in media settings
• SWs are careful when using technology for record storage
• SWs are careful when using technology for record transmittal
• SWs dispose of records properly
• SWs take care to protect patient’s records in case of the therapist’s termination, incapacitation, or death
• SWs protect patient information in teaching or training lectures
• SWs do not disclose identifying patient information when receiving consultation
• SWs protect confidences of deceased patients

CSWA Code of Ethics

Standard III(b,c,e) - Confidentiality

(b) Mandatory reporting obligations may include, but are not limited to, the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); and any duty to report the misconduct or impairment of another professional.

(c) If a subpoena requests or a court order demands testimony or records in a situation where the psychotherapist is seeing more than one person at a time, this Standard suggests all members of the family or couple must agree and sign releases before the clinical social worker will release the records. This is excellent in ethical theory, but the legal requirements may force a different decision (to be discussed in a later section).

(e) CSWs are cognizant of the hazards of technological changes and make reasonable attempts to maintain confidentiality when transmitting and receiving information via electronic means. Storing, transferring, and disposing of records is done properly and with the utmost respect to patient confidentiality.

INTRODUCTION TO DANGEROUSNESS

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

After going through the legislative process, a law is given a name or number such as “Evidence Code 1024” or “Penal Code 11166.” Psychotherapists are obligated to follow the dictates of any laws that are relevant to the practice of mental health counseling. However, equally important and just as powerful, is “case law” defined as “the collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). In essence, case law must be followed as closely within the state of its legislation as is statute, and is considered precedent. This is relevant here as Tarasoff began in California as case law.

Most psychotherapists have heard of the obligation to protect third parties known as the “Tarasoff Ruling,” also known as the duty to warn and protect. This ruling has probably spawned more litigation than any other subject with regard to the therapist’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 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 the University of California at Berkeley. 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 his psychologist at Cowell Memorial Hospital outpatient clinic to cause Tatiana bodily harm - eventually stalked and murdered Ms. Tarasoff

In 1970, her parents sued all involved with the mental health facility. In an appellate decision (1974), the California Supreme Court Justices reaffirmed the 1974 decision 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 in 1985. The California Appellate court made a new interpretation of Tarasoff in 2004, which will be discussed later. For now, it is important to understand the original ruling by the Supreme Court Justices. Remember, however, that each social worker has the responsibility of discerning the Tarasoff statutes and case law in his or her own state.

(See Harmell, 1997, The Stab Felt Round the World: What you Need to Know about Tarasoff for a detailed review.)This famous Supreme Court case law ruling in California (1976) regarding the Tarasoff case was codified in 1985 as follows:

Communicated to psychotherapist directly by patient

• The threat must come directly from the patient to the psychotherapist unless it is an incapacitated patient or a minor patient
• Ewing v Goldstein, the update to Tarasoff in California, will be discussed later in this section

Serious threat of physical harm that is imminent

• A proper dangerousness assessment must be used for evaluation

This will be discussed later in this section

Reasonably identifiable victim

• The justices said if the psychotherapist can determine who the potential victim is “with a moment’s reflection” then the 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 therapist 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 psychotherapist should do the following:

Warn potential victim(s)

• Once again, “with a moment’s reflection”

Notify authorities

• This generally means the police, sheriff, Child Welfare Authorities, 911, or other emergency services

Not codified, yet clear in the Tarasoff decision of 1976:

• Take Steps to prevent the threatened danger (Stromberg et al., 1988)
1. Increase frequency of sessions
2. Send for medication evaluation
3. Send for anger management
4. Adjunctive treatment (group, couple, etc.)
5. Involve support system
6. Increase phone contact with patient
7. Contract with patient
8. Hospitalization

The Tarasoff Supreme Court Justices did not enumerate the above steps and, in fact, stated psychotherapists are to “take whatever other steps reasonably necessary under the circumstances” (Tarasoff, p. 426).

Question 3 – Traditional, More Limited Interpretation of Tarasoff

Frank calls your office saying, “My roommate Bill is your patient! He is heading for McDonald’s where he works! He has a gun and he is going to shoot the guy who fries up the burgers! You gotta do something!!!” Is this Tarasoff?

1. Yes – This has all three elements of Tarasoff
2. No – This does not have all three elements of Tarasoff

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

If you answered (b), you realized that the roommate told you about Frank being a danger to the fry cook; thus it is not Tarasoff under the old interpretation (Up until recently, Tarasoff dictated that you be told the threat against the identifiable victim directly from your dangerous patient). Here, the roommate told you.

Obviously, this is an ethical situation in any event, 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.

UPDATES AND ADDITIONS TO TARASOFF

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

A young woman at the University of Southern California (USC) insisted upon being permitted to enter an eating disorders inpatient program at Northridge Hospital after gaining weight due to Prolixin injections. She was given injections rather than oral medication because she was severely suicidal and had overdosed on her oral meds in the past, tried to hang herself, and enlisted other methods of attempting suicide.

Her physician at USC, Dr. Allen, forbade her entrance to the program, telling her she was inappropriate for it 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, he contacted the Allen. Allen, in spite of his extreme objection to the woman’s appropriateness for the eating disorders program, then failed to inform Gross of the woman’s severe suicidal behavior. The woman was admitted as an inpatient in the eating disorders program.

Unfortunately, the young woman sneaked in Prolixin tabs that she had been hoarding, and quickly overdosed (her mother failed to confiscate the oral Prolixin before admission). After 5 weeks in a coma, she was left with permanent brain damage. The mother sued Northridge, which cross-sued USC. Mother won settlement awards from both USC physicians and Northridge physicians.

This California appellate decision included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers when the patient is seriously dangerous to self.

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

Use caution here when exchanging information about a suicidal patient without the 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 psychiatrist concluded his young adult patient, who was a serious drug addict, was suicidal, but he chose not to inform her parents for reasons that are not discussed in the case. The patient eventually overdosed at which time the parents sued with the goal of extending Tarasoff, or duty to warn of her dangerousness, to suicide.

It appeared that all three requirements of Tarasoff were met:

1. Communicated Directly by Patient to Therapist

The threat had been continuously communicated directly to the psychiatrist, Dr. Greenspan, 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 Greenson

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

Tammy Bellah, the patient herself

The Bellah court refused to extend Tarasoff to suicide. The court ruled that Tarasoff was meant to protect a third party victim of the psychotherapist’s patient, not the patient 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 a case, not because the court decided in its deliberations not to extend the Tarasoff decision to suicide. Thus, extending Tarasoff to suicidality has not been formally tried in a court setting, with the exception of Gross v. Allen.

What does this mean to LCSWs? If Meyer is indeed correct that Bellah did not extend Tarasoff to suicide only due to a legal technicality, we are left with a good deal of uncertainty. Well-trained psychotherapists have always handled suicidal patients with proper care, yet not the same care as Tarasoff situations As of now, the safest approach is to consult with one’s insurance carrier’s legal department and/or one’s personal professional attorney, then document the consultation.

Once again, this is Meyer’s opinion and may or may not be considered case law or standard of care at this time. If one is faced with this dilemma, remember to consult with an expert and document the consultation in the patient’s file.

Question 4

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

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; thus, the third answer (c) is inappropriate. The last answer (d) is a subset of the first answer, thus the first (a) is a more inclusive answer.

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

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

In California, an entirely new twist in duty to warn and protect has been decided once again. It may be that other states will soon decide to take up the call, and make changes, updates, or additions to their Tarasoff laws due to this new case law decision 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. Colello became increasingly depressed and despondent over the breakup after learning of her romantic involvement with another man. Goldstein met with Colello on June 19, 2001, and spoke with him by telephone on June 20 and 21 when Colello told him he was not overtly suicidal, but did admit to giving some thought to suicide. Goldstein and Colello discussed hospitalization, and Goldstein sought permission to speak with Victor Colello, Geno’s father.

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

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

Levinson discharged Colello on June 22. Goldstein had no further contact with his patient. On June 23, Colello murdered the new boyfriend, Keith Ewing, and then committed suicide. Keith’s parents sued Goldstein for wrongful death based upon professional negligence. It was argued Goldstein failed to discharge his duty to warn their son or a law enforcement agency of the risk of harm his patient posed to their son’s safety under Tarasoff.

The Trial

Goldstein moved for a summary judgment arguing the Ewings’ action was barred (in California) under a law which required the threat of serious physical harm to the potential victim be made directly to the therapist by the patient, not by the patient’s father. Here, Goldstein argued, he was told of the threat to Keith Ewing by Geno Colello’s father Victor Colello, not by Geno himself. Goldstein claimed Geno never revealed Keith’s surname to him. (See three elements of Tarasoff above.)

The Ewings opposed the motion for summary judgment claiming the therapist was aware of the threat of harm Colello posed to their son, who was readily identifiable in any case.

The trial court found the Ewings had failed to follow the statutory requirements necessary to defeat Goldstein’s immunity using a claiming the patient himself had not communicated the threat to the therapist, the father had. The trial court also found Goldstein did not have enough information to rise to the level of the serious threat of physical violence required to trigger Goldstein’s liability in a Tarasoff case. The trial court granted summary judgment.

The Ewings’ Appeal

The Ewings make two primary points in their appeal:

1. The trial court’s construction of the law was unduly narrow – without quoting the law here, most would agree it is rather wordy. However, since it was codified in 1985, there has never been any question about how to interpret what it means. “Communicated directly by patient to therapist” is clear: but in this case, the appellate court made new law (see explanation below).

2. A communication from a patient’s family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of the law.

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.”

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 or her to believe the patient poses a risk of grave bodily injury to another person.

Conclusion

Many people are concerned about how to interpret “family member” and “immediate family member” with this new ruling. Does this mean any family member? Only immediate family? Family in another state, or only those who live with the patient? What about a family member who might be vindictive or lying? How do we know if it truly is a family member, or is it a fraternity hoax? What about a disclosure from a roommate, lover, friend, cousin, etc., etc., etc.? Does the information have to be received via in-person telephone communication? What about snail mail, email, fax, or voicemail? What if the psychotherapist does not have information in order to reach the relative who has made contact?

Most psychotherapists have already been dealing with these types of occurrences for many years, and know what to do when they get an outside contact about a patient. The only difference here is that now, in California, and perhaps soon to be in other states, receiving outside information adds the element of a mandated Tarasoff report to a potential victim and to the police, whereas before Ewing v. Goldstein, psychotherapists used clinical judgment in these areas.

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:

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

UPDATES AND ADDITIONS TO TARASOFF

Hedlund v. Superior Ct of Orange Cty, 34 Cal.3d 695 (1983) “All foreseeable bystanders”

The fascinating thing about case law is judges love to be legislators. They like to make law, not just make rulings on law. The interest here with case law is not to assign blame to any psychotherapist for making an “error,” but to see what the judge did that somehow added to the standing law at the time, making new case law. This new case law is known as precedent, and should generally be followed thereafter. Thus, whenever we discuss case law, we are not interested in mistakes made or blame found; we are interested in new precedent set in order to identify our new responsibilities.

In the Hedlund case, an unmarried couple received counseling from an Orange County Counseling Center intern. The man made a threat to the woman during a session; he eventually acted upon 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 psychotherapists (along with protecting the mother) under the dictates of Tarasoff. Thus, the extension to Tarasoff of warning “all foreseeable bystanders” became precedent but not statute.

Since it is not feasible to call a 3-year-old child with a Tarasoff warning, the court felt it was reasonable that a child that young would have been with his mother when the threat could have been carried out. Therefore, in subsequent similar cases, foreseeable bystanders are owed a Tarasoff duty. Once again, we are to use the “reasonable psychotherapist” standard of care – what would a reasonable psychotherapist do given your situation?

Peck v. Counseling Svc of Addison Cty 145 Vt.61;499 A.2n 422 (1985) “Arson is a deadly weapon.”

In this famous case, an adult man told his therapist he was so angry with his father that he was going to burn down part of the father’s farm. The therapist 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 therapist, and ruled in favor of the father that he should have been given a Tarasoff warning of the danger.

In sum, it seems that, in states where damage to property can be included in the Tarasoff mandate, 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, malpractice insurance company, etc.) and document your decision-making method prior to breaching the confidentiality of a patient.

Jablonski by Pauls v. United States, 712 F.2d 398 (1983) “Attempt to seek past records.” In this California case, known as the “Veteran’s Administration (VA) Case,” the girlfriend of a veteran was murdered by a man being treated as an outpatient at a local VA. The precedent set here is that the judge ruled that, in settings where it is possible, psychotherapists are required to attempt to seek the past therapy records of present patients they are treating who are currently dangerous to others.

In this case, it was noted in the patient’s previous VA treatment records he had threatened his former wife with bodily harm prior to actually murdering the current girlfriend in the case at bar. From this precedent, hereafter, at least in California, psychotherapists must either seek former records when treating dangerous patients or document attempts to do so.

Difference Between Tarasoff, Homicide, and Suicide

Tarasoff / Ewing

Despite the update to Tarasoff added by the Ewing (2004) ruling, psychotherapists have a duty to warn and protect only in one circumstance as seen in the chart below. When the psychotherapist receives all three of the requirements of the Tarasoff decision, he or she is mandated to warn the victim(s), notify authorities, and take steps to protect the public. Additionally, it would behoove the psychotherapist to receive and document a legal consultation should the communication of the threat come from “an immediate family member” (Ewing, 2004) rather than directly from the patient him or herself (Tarasoff, 1976).

Homicide

When the psychotherapist has reason to be concerned that a patient is becoming dangerous to the public, yet the three requirements of Tarasoff / Ewing are not apparent, then Tarasoff or Ewing does not exist. Therefore, the psychotherapist has a duty to take reasonable steps to protect the public rather than to warn the victim(s) and notify authorities (Tarasoff, 1976).

Suicide

As discussed in detail earlier in this section, Meyer (1997) makes a strong case for the application of the Tarasoff principles to a suicidal patient; however, this idea does not seem to have taken hold in California to date. It seems that in the case of a suicidal patient, the duty is to rely upon good psychotherapist judgment along with the zeitgeist of the time. Once again, the psychotherapist is always responsible for protection of the patient. One of the steps that remain the gold standard of care is a professional consultation.

TARASOFF Duty to Warn & Protect	HOMICIDE Duty to Protect	SUICIDE Duty to Protect
Mandated to breach confidentiality	Permitted to breach confidentiality	Permitted OR mandated to breach (Meyer) confidentiality
- warn victim(s) - notify authorities
Mandated to take steps to prevent threatened danger	Mandated to take steps to prevent threatened danger	Mandated to take steps to prevent threatened danger

In general, the typical breaches of confidentiality that are mandated are:

• Tarasoff / Ewing
• Child Abuse
• Gravely Disabled
• Most forms of Elder Abuse (more later)
• Most forms of Dependent Abuse (the same as Elder Abuse)

In general, the typical breaches of confidentiality that are permitted are:

• Some forms of homicidal behavior or ideation
• Some forms of suicidal behavior or ideation
• Some forms of threats, intimidation, harassment of dependent adults or elders (more later) (Harmell, 1997).

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

Question 5

Joe tells you he is going to kill his brother on New Year’s Eve with a gun from his collection. Today is September 2. Is this Tarasoff?

1. Yes, identifiable victim, told to you
2. Yes, unless he is psychotic
3. No, not imminent danger

If you guessed (c), you are correct. Only two requirements are met – he told you directly, and the brother is identifiable. New Year’s Eve is not imminent danger.

ASSESSMENTS FOR VIOLENCE & SUICIDE

Assessment for Violence, Dangerousness, or Tarasoff

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

• History of violence – Single most predictive factor (Simon, 2001)
• Gender – Males are 10 to 1 over females more likely (Ibid.)
• Substance Abuse – increases the likelihood of violence (Stromberg et al., 1988)
• Mental Incapacity – interfering (Ibid.)
• Organized Plan (Simon, 2001)
• Feasible Plan (Ibid.)
• Unavailability of support group (Ibid.)
• Violent environment (Ibid.)

Suicide Statistics (Baerger, 2001)

• Ninth leading cause of death in US
• Third leading cause of death of Americans between 15 and 24 years of age
• Twenty percent of psychotherapists 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
• 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). 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

Once again, these authors, in their research, found male patients are more likely to act out dangerously to self and others. Once again, it is mandatory to look at each patient and each element on a case-by-case basis.

Age

This important element was once given a value that it is not given today based on the zeitgeist of the particular time. Now that the Internet is so available, psychotherapists are able to go online and research the culture and age of the client in question to establish potential.

Depression

It stands to reason that the mood disorders in the Diagnostic and Statistical Manual are paired with suicidality. Clinical depression increases suicide potential and should always be taken seriously.

Prior History

As with assessment for violence, risk increases when there is a history of attempts. Some research shows that up to two-thirds of successful suicides have had a “trial run” or prior attempt that failed.

Ethanol Abuse

Interestingly, 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.

Rational Thinking Loss

Has the patient lost the ability to think rationally? Is there a potential psychosis or reason the patient is hearing voices or thinking he or she should kill him or herself? For example, “A voice told me to kill myself…”

Support System Loss

The research indicates that those depressed individuals with a stronger support system are less likely to act out in dangerous ways due to help and support from family members, friends, clergy, and other people in the patient’s life. A decreased support system indicates increased risk of suicide.

Organized Plan

As with violence assessment and assessment for dangerousness, the more organized the plan, the more the psychotherapist should be concerned and take action quickly. A psychotherapist can never ignore even a disorganized plan.

No Significant Other

The original authors used the terminology, “No Spouse,” which is clearly outdated today. I have taken the liberty of updating this element as you see it here. Note that “no significant other” has the same flavor as “S” above when the psychotherapist reviews the element of support system.

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? This element could be paired with the “D” element of depression.

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

Chart for Scoring Suicidal Patients

0-2 points	No real problems; keep watch
3-4 points	Send home but check on patient frequently
5-6 points	Consider hospitalization invol or vol, depending upon your level of assurance the patient will return for another session
7-10 points	Definitely hospitalize voluntarily or involuntarily

Question 7

Vignette – Danny

Danny is a 28-year-old man whom you have been seeing for three months under his Aetna Insurance at work. He 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, groom himself, catch the bus, grab something to eat, 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 things” and “doesn’t need much anymore.” Since he lives in a furnished, month-to-month apartment, he tells you he has no ties, and can “leave anytime and with no looking back.”

You know Danny has been a heavy pot user in the past and in high school; he was hospitalized in the local psychiatric facility for swallowing a bottle of Tylenol with a fifth of vodka. His best friend found him later that day in the basement of his house, where he had gone so he would not be found.

When you inquire about Danny’s current state of mind, he tells you he is very happy to be getting time off from work and taking a long vacation. He tells you not to worry about him, and to fill in his therapy hour in your schedule because, “I don’t know when I will return from my vacation. I have taken a leave of absence from work.”

Do a SAD PERSONS on Danny and add up the points. What did you get? What would you do?

1. 2 – no problems… he is going on vacation… he’s fine
2. 4 – send home but call him later
3. 6 – consider hospitalization, but if you believe he will return, let him go
4. 7 – try to hospitalize no matter what

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

The best answer here is (c), 6 points = Male, depressed, prior attempt, drugs, no support system, no significant other. However, you have a bit of extra information here: Danny is giving away all of his possessions! With this information, that goes beyond the SAD PERSONS; take action quickly as in Question 8 below.

Question 8

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. Take steps to stop the danger
4. Have him make a contract not to harm himself

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

The best answer here is (b), as Danny is seriously suicidal at this point. Normally psychotherapists try to take the least restrictive route of treatment with a patient. However, in this case, it seems immediate action is mandatory due to Danny’s level of suicidality.

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

SAD PERSONS CHILDREN AND ADOLESCENT SCORING SYSTEM
0-29	Do formal suicide assessment Encourage child/parents to participate in child’s counseling Give child card with 24-hour crisis telephone number Encourage follow-up visits if therapy is suggested Note any changes in child’s condition Should therapist intensify treatment? Consult when unsure, “No-suicide” contract, 24-hour hotline, if necessary
30-49	Includes everything from previous category Continued suicide assessment Look for clues such as suicide ideation or plan in writings and art work e. g., journals, play-writing, poetry, short stories Have parents read Email accounts, “MySpace”
50-69	Consider voluntary / involuntary hospitalization What is person’s willingness for continued treatment? Is person complying with treatment plan? How safe is person without hospitalization? How involved or supportive is family? Should there be Child Protective Services involvement?

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.

REFERENCES

Baerger, D. (2001). Risk management with the suicidal patient: Lessons from case law. Professional Psychology: Research & Practice, 32, 359-366.

Bednar, R., Bednar, S., Lambert, M., & Waite, D. (1991). Psychotherapy with High-risk Clients: Legal and Professional Standards. Pacific Grove, CA: Brooks/Cole.

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.

Harmell, P. H. (1997, Mar-Apr). The stab felt round the world: What you need to know about Tarasoff. The California Psychologist.

Harmell, P.H. (1997, Sept-Oct). When is it legal and ethical to breach a patient’s confidentiality? The Los Angeles Psychologist.

Juhnke, 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.

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.

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.

LEARNING OBJECTIVES FOR SECTION C

• Maintain records properly
• Evaluate appropriately whether to accept a new referral for treatment
• Administer proper intake procedures
• Discuss updates about HIPAA and patient records

PROTECTIVE INTAKE: TELEPHONE OR IN OFFICE

There is no question that the primary concern of all psychotherapists is patient welfare. However, in order to maintain psychotherapist welfare, it is important to do a comprehensive intake either over the phone or at the first appointment in order to avoid subsequent problems such as patient abandonment, subsequent improper termination, or improperly establishing a duty of care (See Section A for details on Duty of Care).

Elements to consider are as follows:

• Referral source – Could taking this new patient create any multiple relationships for you? Are you currently seeing this caller’s best friend, cousin, etc.? Is this a close neighbor of yours, and you live in a large town where there are a number of other therapists to which to refer this patient? Is this an appropriate person for you to treat?
• There is absolutely nothing unethical or illegal in treating people who know each other, or are in the same family as long as the treater has the proper training, education, and experience. What this means is that if one plans to see both parties of a couple, the psychotherapist must have the training and ability to handle this type of arrangement. If a psychotherapist does not have such training or does not have the personality to tolerate such confidentiality complexities, then one must either refer or receive consistent consultation until skill is achieved.
• Emergency contact – Be certain to get the name and number of an emergency contact individual as soon as possible in case any of the “red flag” issues occur early on (suicide, homicide, Tarasoff, any of the abuses etc.)
• Psychiatric history – Much can be gleaned from discovering current medications being taken, past psychiatric hospitalizations and diagnoses, and current and past history of treatment. For example, if in an intake, the therapist discovers the potential patient is being prescribed Thorazine, one might begin to consider certain diagnoses.
• Presenting problem – Why is the person seeking treatment now? Why not return to a previous therapist, if there was one? If a patient is in the middle of suing a former therapist, is this something one wishes to get involved with which could mean subpoenas or court attendance?
• Theoretical orientation – Does the psychotherapist’s theoretical orientation fit the need of the patient and the presenting problem appropriately? Can the psychotherapist get consultation in order to gain skill in an appropriate theoretical orientation for this patient? Is time an issue, or is the patient in a crisis and needs to be referred immediately to someone competent in the required theoretical orientation? For example, treatments for severe obsessive-compulsive disorder or Tourette’s Disorder are specialty areas.
• Legal / Ethical Considerations – Is there any reason it would not be appropriate for you to consider treating this person? Do you want to treat this person?
• Rural area versus large city considerations
• For an in-depth discussion of rural practice issues, see Campbell & Gordon, 2003 and Erikson, 2001
• Please review Section A for CCARQ in an intake
• Level of Expertise – If you are going to begin a new treatment style, a new population, or new DSM diagnosis with this patient, are you able to get a proper and appropriate consultation? It may be best to refer the patient if you do not have current expertise.

Definition of Terms:

• Competence – sufficient, adequate or capable in the area being discussed (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 done research, written on, and read the history of the topic, and/or speaks, lectures, or teaches on the topic. Thus, most psychotherapists are specialists in some areas (children, ADHD, depression, etc.), but may not reach the level of an expert.

Experts Define “Specialist”

Zachary Pelchat, former attorney for the California Association of Marriage and Family Therapists (CAMFT) 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 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, Justice Cardoza commented, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” (Schloendorff v. Society of New York Hospital, 211 NY.125, 1914).

What actually is informed consent? The patient consents to be in treatment with the psychotherapist after being informed, for example, of office policies, treatment methods, and limits of confidentiality.

Limits of Confidentiality and Privilege

To review, confidentiality is an ethics term referring to the contract between the patient and psychotherapist where the psychotherapist “promises” to keep all communications private except under certain legally and ethically defined situations. Privilege is a legal term which pertains to who may consent to release of confidential patient material (records or testimony) in legal proceedings such as subpoenas for records or testimony.

There are two basic forms of civil liability regarding informed consent according to Corey, Corey & Callanan (1998):

• Breach of contract – refers to promises made and not kept. For example, “I can make you lose weight and never gain it back.” This is not possible, is unethical to offer, is not documented anywhere in the literature or research, and cannot be proven.
• Information not given – refers to trying to enforce office policies not previously discussed with the patient. For example, trying to charge for a late cancellation without informing the client of this policy in advance is improper and unethical, and cannot be upheld in court.

Berner (1998) notes the elements required for informed consent:

• 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”).
• Capacity to give consent – Capacity to give consent and to choose to be in psychotherapy 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 to the patient in a language and at a level 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 in the language of origin. In other words, it is up to the psychotherapist to make certain the consent is truly “informed.”
• Using a family member to translate informed consent is not considered unethical; however, the use of a family member in the sessions as a translator is not considered appropriate due to confidentiality.

Finally, as Guthiel 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 agreed to treatment voluntarily, and has the capacity to consent voluntarily. Most providers have prepared forms that cover these issues, especially with HIPAA provisions being added recently (more later).

Question 1

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

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

Question 2

Therapist Jones is trying to collect a fee from a “patient” who made an appointment but never came to the particular session, and never gave a 24-hour cancellation, bur refuses to pay for Jones’s time. The patient complains that the therapist failed to put this cancellation policy on his informed consent form so that the patient had no idea there was a 24-hour cancellation policy. If there is a liability suit, which type of informed consent liability is involved?

1. “Information not given”
2. “Breach of contract”

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

Of course, (c) is the correct answer for Question 1. When a person is under the influence, there are several issues, not the least of which is informed consent. It would not be a valid consent, as George did not have the current “capacity” to give a valid consent. For Question 2, the answer is (a), as discussed in Section C.

SOCIAL WORK CODES THAT APPLY TO INFORMED CONSENT

NASW Code of Ethics

Standard 1.03(a-f) - Informed Consent

(a) SWs should use clear and concise language that can be understood by the patient. The patient should be told about the purpose of the services, risks related to the services, limits to the services, problems with third-party payers, problems with costs of treatment, reasonable alternative treatment options, and the fact that treatment is purely voluntary for the patient.

(b) When patients are not literate or have difficulty understanding the primary language used in the practice setting, the SW takes steps to ensure comprehension. Arranging for a qualified translator or interpreter whenever possible, without breaching confidentiality, is an option.

(c) When the patient is unable to give consent, the SW seeks permission from an appropriate third party without breaching confidentiality.

(d) When the patient is not receiving services voluntarily, the SW gives as much information as possible.

(e) SWs who give services over the Internet must inform recipients of the limitations and risks.

(f) SWs must obtain patients’ informed consents prior to audiotaping or videotaping clients or permitting observation of services to patients by a third party.

SOCIAL WORK CODES THAT APPLY TO INFORMED CONSENT

CSWA Code of Ethics

Standard II - Responsibility to Clients

1. Informed Consent (a-b)

(a) Clinical social work takes place within a context of informed consent. Patients must be informed of the extent and nature of the services being offered, the mutual limits of service, rights, opportunities, and obligations associated with the provision of and payment for those services.

In order for consent to be valid, it must be informed clearly, must be chosen freely, and without undue influence, and the patient must have the capacity to give consent freely. The language of the consent form or verbal formal must be given in a way that is understandable to the person receiving the information.

(b) CSWs have a duty to be aware of the impact and potential impact of all third- party payment arrangements and the CSW must discuss these fully with the patient along with alternative treatment options.

ACCEPTING REFERRALS

Psychotherapists are constantly confronted with ethical dilemmas in accepting or declining newly referred patients from colleagues, and from current and past patients. There are a number of issues that must be considered including counter-transference, finances, multiple relationships, rural or large town settings, confidentiality and other boundary issues.

In considering new referrals, psychotherapists must be vigilant about patient welfare along with their own need to earn a living, especially in this era of managed care. All efforts must be taken to avoid undue influences of bias in the psychotherapist in order for the therapist to remain neutral and effective (Shapiro & Ginzberg, 2003).

Every referral for treatment requires a decision-making process, some more than others do. Some of the initial issues regarding referrals include:

• The source of the referral
• Is the referral from a current or past patient
• Is the referral from a colleague
• Is the referral from a referral list
• Is the source unknown
• Finances of the referred patient and the psychotherapist
• Scheduling considerations – evening hours available?
• Your first impressions of the referred patient or family on the telephone or at intake

Referrals from Current and Past Patients

Accepting or declining referrals from current or former patients involves three primary potential ethical conflicts for the psychotherapist:

(1) exploitation

(2) multiple relationships

(3) confidentiality

Despite the ethical difficulties involved with accepting referrals from current and former patients, there is no set standard of care for this process; thus the psychotherapist is left to fend for him or herself. Several years ago, Epstein and Simon (1990) expressed the more rigid psychoanalytic view that taking a referral from any patient is an example of exploitation in that the therapist is then receiving financial compensation (a “gift” in their words) in the form of a new patient, along with either a current fee from the referring patient or having received a past fee from the referring patient.

Since gifts are generally kept out of the therapeutic relationship, should there be a strong case for a referral being a gift, it could be considered a multiple relationship, according to some authors (Shapiro & Ginzberg, 2002). “We must attend to the meaning of a referral as a gift and beware of the possibility of becoming indebted to our patients” (Shapiro & Ginzberg, 2003, p. 259). These authors state, “It is our position that when a patient makes a referral that is likely to impinge on his or her treatment (e.g., spouse, family member, sexual partner, close friend, coworker, or roommate), it is in the patient’s best interest for the therapist to decline“ (Shapiro & Ginzberg, 2003, p. 259).

Once again, there is absolutely nothing unethical or illegal in treating people who know each other, or are in the same family, as long as the treater has the proper training, education, and experience. What this means is that if one plans to see both parties of a couple, the psychotherapist must have the training and ability to handle this type of arrangement. If a psychotherapist does not have such training or does not have the personality that can tolerate such confidentiality complexities, then one must either refer or receive consistent consultation until skill is achieved. It is always appropriate to “check in” with a patient to see if they are opposed to you treating the referral as long as it would not be a breach of confidentiality to either party. In reality, this issue has been the subject of a number of complaints to licensing boards and ethics committees when mishandled by psychotherapists.

Once a Patient, Always a Patient?

Psychotherapists retain their professional capacity with a patient far beyond the actual conclusion of treatment.

What if the former patient decides to return to therapy after the new referral has begun treatment with the psychotherapist? This is an important consideration in deciding whether or not to accept the referral from a patient or to decline. Experts suggest therapists always try to consider the likelihood of the original patient returning to therapy in the future. What would the impact of this have upon both patients (Shapiro & Ginzberg, 2002)?

The Severely Disturbed Patient

A greater degree of pathology should dictate the psychotherapist’s decision whether to accept a referral from a current or former patient. The patient’s level of ego strength, ability to share, maturity, and diagnosis are critical factors in the final decision.

Rural Areas versus Large Towns

Practicing in a small town offers numerous pleasures and many conflicts, especially in the area of multiple relationships. In rural settings, everyone is your neighbor and many roles overlap. Someone who lives three blocks away in New York City is very different from a neighbor who lives three blocks away in a small town. The role of the psychotherapist may overlap with worshiping at the same church or synagogue, going to the same gym, having children in the same school, etc. Therefore, accepting a referral from a current or past patient in a rural setting is fraught with different problems than in a large town (Shapiro & Ginzberg, 2002).

Counter-transference

When the referring therapist is perceived to be of higher status or is held in higher esteem, it is not unusual for the receiver of the referral to feel pressured to impress the referring colleague. If the referring therapist is perceived as incompetent, or unethical, it may intrude upon the treatment as well.

When a former instructor or supervisor refers a patient, it is a truly rewarding moment in one’s professional career. It becomes difficult to decline a referral from someone who can help one’s career or from someone the therapist wishes to impress; however, patient welfare takes precedence over any other consideration in the decision-making process.

In accepting a referral from another therapist held in esteem, the therapist may find himself trying to justify his confidence. There is pressure to do a good job, to help the client, and to take all referrals, even if one does not have the expertise to treat the particular issue. Shapiro and Ginzberg (2003) discuss the therapist who accepts a new referral from a “higher status” referring therapist that one would not normally accept. This leads to a feeling of overwhelm, counter-transference to the patient, and perhaps decreased confidence. The therapist who accepts unwanted referrals from a higher status source may accept a lower fee than appropriate, or create a cramped schedule as a sacrifice in order to stay in good graces with the referral source.

Resistance to Examining the Referral Dilemma

Shapiro and Ginzberg (2004) report that, “We were struck by the lack of interest that colleagues displayed in the proposed topic of this article [referrals]…. Naturally, we became curious about this. Eventually we came to understand that this reaction of boredom was a defense… one that might explain why others have not written much on this topic” (p. 261). The authors then posited some ideas why psychotherapists have remained silent on this topic:

• Greed – Patients complain that the psychotherapist is in a relationship with the patient only because the patient is paying for the psychotherapist’s time. Most psychotherapists are uncomfortable acknowledging their own financial needs. It is imperative to accept the fact that psychotherapists have financial needs – otherwise, they remain in denial.
• 84% of 532 psychiatrists who responded to a research survey admitted to accepting referrals from current or former patients (Epstein, Simon, & Kay, 1992)
• Patient’s Real Life – There is a psychoanalytic position that the psychotherapist should try to stay out of the “real” life of the patient and only deal with the unconscious fantasies and impulses. Accepting a referral with whom another patient is familiar may threaten the psychotherapist’s ability to remain “clean” by allowing the new referral to give new and additional material about the existing patient, and vice versa. Additionally, this may satisfy the psychotherapist’s voyeuristic impulses but adversely affect the psychotherapeutic relationship.
• Defense Against the Oedipal Triangle – Once the psychotherapist allows someone from the “outside” world to enter the relationship, the “illusion that they are working in the therapeutic dyad” is over. (Shapiro & Ginzberg, 2003, p. 262) The complex fabric of connections between the therapist and patient is often not addressed, and accepting a referral from another patient may force the issue into the open.
• Defense into the Sibling Dynamic – Therapists are often hesitant to explore the difficult and complex issues of the sibling dynamic of the transference, and may collude with the avoidance of this powerful phenomenon by ignoring it or refusing to discuss it with the patient or with colleagues. These authors found many psychotherapists displayed “multiple resistances to awareness of the ensuing painful affects” of the sibling dynamics of their patients who referred patients (Shapiro & Ginzberg, 2001, p. 337).

Implications for Practice

Everyone may be at risk when a psychotherapist fails to thoroughly examine the pitfalls when a current or past patient refers a patient.

Referral from a Current Patient

A referral is an important bit of information from a current patient that should be discussed and examined prior to accepting the referral. If the current patient expresses second thoughts, or the psychotherapist has concerns (obvious or unexplained), it may be best to decline. The current patient is always the primary responsibility in this situation; consider all possibilities prior to acting upon the referral. If it will cause the therapist anxiety, interfere with the current or new patient’s therapy, distract the therapist, cause counter-transference reactions, improper boundaries, or problems with confidentiality or any other issues, then the therapist must decline.

As a result of their research, Shapiro and Ginzberg (2003) developed ten questions the psychotherapist should ask him or herself to help uncover and assess the risks inherent in referrals that could compromise either therapeutic relationship (the current patient or the potentially new patient):

1. What is your relationship to the referral source?
2. Why did the referral source refer the patient to you?
3. If the referral source is a current patient, what risks to the therapeutic relationship might acceptance of the referral introduce? What is the degree of risk?
4. How would the current patient feel if you accepted the referral?
5. How would the current patient feel if you declined the referral?
6. What is the relationship of the referral source to the referred patient?
7. If there is a relationship between the referral source and the referred patient, does accepting the referral jeopardize confidentiality, therapeutic boundaries, or the psychotherapist’s equanimity?
8. Is there a dual relationship between you and the patient (e.g., is the referred patient a neighbor, colleague, supervisee, family friend, etc.)?
9. If a dual relationship exists, what are the implications of extra-therapeutic contact – direct or indirect – for you, the patient, and the treatment?
10. Could you comfortably justify your decision to a colleague and/or an ethics review board?

Since psychotherapists need referrals to maintain their practice, it is necessary to accept referrals. Therefore, the challenge remains to appropriately separate financial issues from clinical issues. Clearly, psychotherapy has a circuitous and unpredictable route. Thus, the therapist can never know ahead of time if the original patient will have a need to return to therapy. When in doubt, consult with an expert, and document the consultation.

SOCIAL WORK ETHICS CODES THAT APPLY TO REFERRALS

NASW Code of Ethics

Standard 2.06(a-c) – Referral for Services

(a) SWs should refer patients to other professionals when the other professionals’ specialized knowledge or expertise is needed to better serve the patient.

(b) SWs who refer clients to other professionals take appropriate steps to facilitate an orderly transfer.

(c) SWs do not accept nor give payment for referrals.

Standard 3.06(a) – Client Transfer

(a) SWs should carefully consider the client’s needs before agreeing to provide services to the referral. To minimize possible confusion and conflict, clinical social workers should discuss with potential patients the nature of the patient’s current relationship with others and the implications, including benefits and risks, of entering into a relationship with the social worker.

Standard 1.06(a-d) – Conflicts of Interest

(a) SWs should avoid conflicts of interest that could interfere with the exercise of impartial judgment.

(b) Social workers do not exploit others for their own interest.

(c) SWs do not engage in dual or multiple relationships.

(d) SWs make relationships clear to all parties when the social worker provides services to two or more people who have a relationship with each other and take appropriate action to minimize any conflict of interest (NASW, 2008, p. 7-8).

CSWA Code of Ethics

Standard 3(a) – Relationships with Clients

(a) CSWs avoid dual or multiple relationships and are responsible for setting clear and appropriate boundaries in their professional relationships with patients. They do not exploit or harm patients or allow their judgment to be compromised. “When clinical social workers provide services to two or more persons who have a relationship with each other, they clarify with all parties the nature of the professional responsibilities to each of then, and the ways in which appropriate boundaries will be maintained” (CSWA, 2006, p. 5).

Standard V – Fee Arrangement

“When setting fees, clinical social workers should give consideration to the client’s ability to pay and make every effort to establish fees that are fair, reasonable, and commensurate with the value of the service performed” (CSWA, 2006, p. 10). Here, the CSW is charged with putting the needs of the patient before that of his or her own, as mentioned in the research discussed by Shapiro and Ginzberg earlier.

Question 3

When Shapiro and Ginzberg note in their research about referrals, “once a patient, always a patient,” to what were they referring?

1. Psychotherapists must continue treating patients even when they fail to remain current on their bill
2. If the patient moves to another location, the psychotherapist must continue to treat the patient until a new therapeutic relationship is established
3. Even when a patient has taken a break or “terminated” from therapy, he or she may wish to return to therapy

NOTE: See Section C – “Referrals” for review of answer material below.

Despite the fact that answers (a) and (b) are reasonably good answers, the correct answer is (c). Shapiro and Ginzberg make the point that a former patient may wish to return to therapy at any time, whether or not the psychotherapist believes this is clinically sound. The psychotherapist must leave the door open for this possibility.

PATIENT RECORD-KEEPING GUIDELINES

Stromberg et al. (1988), a group of eight attorneys who were consulted by the American Psychological Association 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 psychotherapist must transfer care to another professional.

Other purposes include review of the delivery of services, self-monitoring, documentation of what is working, and progress toward treatment goals. In essence, properly kept records enhance the treatment and protect the psychotherapist from litigation and spurious ethics and licensing allegations. Practitioners who do not maintain adequate patient records put themselves in ethical and legal peril (Schaffer, 1997). Keeping records is the best form of liability insurance (Corey, Corey, & Callanan, 1998).

The exact way progress and psychotherapy (HIPAA) or process notes are kept depends upon the setting in which the psychotherapist is working. For example, in certain clinics and hospitals, notes must be taken in specific ways to meet requirements for funding sources. In university counseling centers, or psychoanalytic training institutes, routine progress and psychotherapy notes may have completely different requirements. Private practice notes are at the discretion of the clinician with exceptions for state and federal law.

Experts suggested what should be the contents of patient records prior to HIPAA (Benitz & Jensen, 2004; Canter, Bennett, Jones, & Nagy, 1994; Bennett, Bryant, VandenBos, Greenwood, 1990; APA, 1994; Corey, Corey, & Callanan, 1998). However, the basics remain the same:

• Identifying data – such as culture, age, address, telephone numbers, relationship status, cultural issues
• Primary care physician – or document why there is none
• Objective finding from most recent physical if possible
• Progress of treatment
• Type of service – individual, group, couple, family, child; theoretical orientation being used at various stages of treatment; possible crisis intervention
• Dates of service
• Intake information
• Mental status exam
• Signed informed consent – good for the length of the treatment unless office policies change
• Referrals to other service providers
• Releases of information forms – good for 12 months unless the patient changes his or her mind
• Significant actions taken – “red flag” issues and how handled, danger to self or other, abuse issues, substance abuse, etc.
• Diagnosis – using current DSM terminology for insurance purposes; if records are to be public in any way (court proceedings), take special care here)
• Fee and insurance information
• Consent for treatment form – signed by patient

Chart notes – see below for further discussion

How Long Should Patient Records be Retained?

When your state fails to provide a statute that dictates how long patient records must be retained in private practice, 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). LCSW’s may also wish to follow these guidelines:

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.

Chart Notes

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 are subject to subpoena and court order. (Subpoenas and court orders will be discussed later in detail.) There is no such thing as what are sometimes called “shadow notes” which refer to personal notes the psychotherapist 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). Psychotherapists 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 psychotherapists are under the false belief that “process” notes are private and the property of the psychotherapist. This could not be more untrue according to these attorneys (Stromberg et al. (1988). The California Association of Marriage and Family Therapist (CAMFT) Workshop Legal & Ethical Issues: Best Practices material goes so far as to take the stand "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" (Benitez & Jensen, 2004, p. 169). However, in the terminology, “progress” and “process” notes are considered different. HIPAA now refers to “process” notes as “psychotherapy” notes.

PROCESS/PSYCHOTHERAPY NOTES	PROGRESS NOTES
Less for defending oneself More for documenting therapy relationship Follows one’s theoretical orientation based upon the research Available by subpoena, Court order only Thoughts, hunches, speculations	Solid treatment plan documentation Especially in crisis situations Safety planning in crises Public record of goals set…goals met Available to patient & insurance co. Decision-making

Question 4

Psychotherapists can keep their own personal thoughts about a patient in personal files at home.

1. True
2. False

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

If a psychotherapist has taken all the appropriate steps to become HIPAA compliant, he or she may keep two sets of records under Federal and State HIPAA laws. However, neither of these records are “personal” records that are casual records that can be kept at home as personal files. Thus, the answer is (b) false. For more information, one must take a full course on the laws of HIPAA.

HIPAA AND PATIENT RECORDS

Once again, there are numerous courses both online and in person where psychotherapists can learn how to become HIPAA compliant. Here, the basics will be discussed in order to integrate record keeping into the discussion with 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; with regard to HIPAA, psychotherapists are instructed to follow whichever law protects patient’s privacy the most adequately and completely. Psychotherapists 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 email – you are required, under federal law, to be HIPAA compliant. If you use telephone lines verbally, freestanding 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, 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 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 transactions. Some experts say all psychotherapists will eventually have to be HIPAA compliant whether or not they make electronic transactions. In fact, all psychotherapists in the state of New York, whether or not they transmit electronically, are required to be HIPAA compliant. Stay tuned!

HIPAA PROCESS/PSYCHOTHERAPY NOTES	HIPAA PROGRESS NOTES
Private notes of the psychotherapist 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:

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 - 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.

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 an LCSW has been given written notice, and 1) the LCSW has reasonably discussed the purpose of the records request, and 2) the LCSW believes that – if the request is fulfilled – there will be no harm to the patient, the following must be followed:

Access to View Records	H&SC 123110a – Within 5 days
Access to Copy of Records	H&SC 123110b – Within 15 days
Denial of Access to Records	H&SC 123115
Summary of Records	H&SC 123130a within 10 days

In California, the psychotherapist “owns” the actual file, but the information in the file is the property of the patient (Benitz & Jensen, 2004; Caudill & Pope, 1994; Bennett, 1990). Therefore, 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 do allow for the possibility of denial of access to the records if the psychotherapist can document good reasons why it would be destructive to the patient to view or have a copy of records. However, the patient still has the right to appoint another mental health professional 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.

Summary of Records

A summary of records is an option that is often suggested by the psychotherapist versus copying the entire file. This may or may not be acceptable in court proceedings, depending upon the judge’s pleasure. The elements of a summary of records are enumerated by Benitz & Jensen (2004) as well as Canter et al. (1994):

• Chief complaint and history of complaint
• Consultation 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
• Objective findings from most recent physical if possible
• Progress made in treatment
• Psychological assessment results
• Termination notes, if applicable

SOCIAL WORK ETHICS CODES THAT APPLY TO RECORD KEEPING

NASW Code of Ethics

Standard 1.08 (a-b) – Access to Records

(a) Social workers provide patients with reasonable access to their records. If social workers are worried that access to records might harm a patient or the patient might be caused serious misunderstanding by being given access to the record, the social worker provides assistance and consultation in interpreting the record. Social workers only limit access to records by patients under extremely limited circumstances when there is compelling evidence such access would cause serious patient problems.

(b) When providing access to records to patients, social workers always protect confidentiality of every other person mentioned in the record.

Standard 3.04 (a-d) – Client Records

(a) Social workers document patient information accurately and honestly.

(b) Social workers document patient information in enough detail to ensure continuity of services in delivery of services in the future.

(c) Documentation should protect patient privacy to the greatest extent possible.

(d) Records should be maintained for the number of years required by state laws following termination of services.

CSWA Code of Ethics

Standard II – Responsibility to Clients

2. Practice Management (d&e)

(d) CSWs keep records for families and each individual they treat in accordance with relevant administrative rules and contractual obligations and state and federal laws.

(e) Requirements of the ethics code apply to all media such as electronic and written records.

CSWs establish a policy for retention of records and disposal of records, and communicate this to patients. In the case of the therapist’s death or incapacity, the CSW should have a plan or procedure for proper handling of patient records that protects patient privacy and is in accordance with state law.

The idea here is to:

• Facilitate provision of services later, if needed to the client by other professionals
• To allow for replication of research
• To aid in accuracy of billing
• To ensure compliance with law
• To properly store records in databases
• To ensure that records, insurance information, and billing are prepared accurately and appropriately. The idea here is to avoid billing for a false diagnosis (e.g., Axis I: 296 Major Depressive Disorder) that is commonly and universally paid for by the insurance company rather than what is actually being treated (V61.1 Partner Relational Problem), which may not be covered by insurance because a V-code is “a condition, not a mental disorder.” This is insurance fraud, and a severe license and ethics violation.

Question 5

According to the APA Specialty Guidelines, how long must private practice records be retained?

1. A total of 15 years
2. A total of 7 years in private practice settings

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

Don’t forget that when there are no laws that dictate how long private practice patient records must be kept the APA Specialty Guidelines for Delivery of Services lend some guidelines to follow. Thus, the best answer to Question 5 is (a).

REFERENCES

APA. (1981). Specialty Guidelines for the Delivery of Services. Washington, DC: Author.

American Psychological Association. (1994). APA’s New Record Keeping Guidelines. Monitor, 89, 984-986.

Benitz, B., & Jensen, D. (2004). The California Association of Marriage and Family Therapist Workshop Legal & Ethical Issues: Best Practices. San Diego: CAMFT.

Bennett, B., Bryant, B., VandenBos, G., & Greenwood, A. (1990). Professional Liability and Risk Management. Washington, DC: APA.

Berner, M. (1998). Informed consent. In L. Lifson & R. Simon (Eds.), The Mental Health Practitioner and the Law (pp. 23-43). Cambridge, Mass: Harvard University Press.

Campbell, C., & Gordon, M. (2003). Acknowledging the inevitable: Understanding multiple relationships in rural practice. Professional Psychology: Research & Practice, 34, 430-434.

Canter, M., Bennett, B., Jones, S., & Nagy, T. (1994). Ethics for psychologists: A commentary on the APA ethics code. Washington, DC: APA

Caudill, B., & Pope, K. (1995). Law and Mental Health Professionals. Washington, DC: APA

Corey, G., Corey, M., & Callanan, P. (1998). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.

Epstein, R., & Simon, R. (1990). The exploitation index: an early warning indicator of boundary violations in psychotherapy, Bulletin of the Menninger Clinic, 54, 450-465.

Epstein, R., Simon, R., & Kay, G. (1992). Assessing boundary violations in psychotherapy: Survey results with the exploitation index. Bulletin of the Menninger Clinic, 56, 150-166.

Erikson, S. (2001). Multiple relationships in rural counseling. The Family Journal: Counseling and Therapy for Couples and Families, 9, 302-304.

Guralnik, D.B. (Ed.) (1983). Webster’s New World Dictionary. NY: Warner

Guthiel, T. (1980). Paranoia and progress notes: A guide to forensically informed progress notes. Hospital and community Psychiatry, 31,479-482.

Harmell, P.H. (2000, May-June). Clarification of record keeping in private practice settings. The Los Angeles Psychologist.

Harmell, P.H. (1997, May-June). The current law on patient access to health records. The Los Angeles Psychologist.

Johnson, S. (1997). Therapist’s Guide to Clinical Intervention. London: Academic Press.

Jongsma, A. (2001). The Adult Psychotherapy Progress Notes Planner. NY: Wiley

Pelchat, Z. (May/June, 2001). The standard of care: Definitions and examples. The California Therapist. San Diego: CAMFT.

Schafer, S. (1997). Don’t be aloof about record-keeping; it may be your best liability coverage. The National Psychologist, 6, 21.

Shapiro, E. & Ginzberg, R. (2003). To accept or not to accept: Referrals and the maintenance of boundaries. Professional Psychology: Research & Practice, 34, 258-263.

Shapiro, E. & Ginzberg, R. (2002). Parting gifts: Termination rituals in group therapy. International Journal of Group Psychotherapy, 52, 319-336.

Shapiro, E. & Ginzberg, R. (2001). The persistently neglected sibling dynamics and its applicability to group therapy. International Journal of Group Therapy, 51, 327-341.

Stromberg, C., et al. (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.

Thompson, A. (1990). Ethical Practices in Psychotherapy. NY: Wiley.

www.apa.org (HIPAA compliance instruction) .

LEARNING OBJECTIVES FOR SECTION D

• Utilize ethical billing practices
• Take steps to prevent insurance fraud
• Explain when and how to get a professional consultation

FEES AND FINANCIAL ARRANGEMENTS

Finances are difficult for most clinicians who would much rather be doing clinical work than discussing how much they are going to charge per session hour. Often the collection of fees takes a back seat to clinical considerations. However, most clinicians rely upon practice income to pay current living expenses, so regular collection of fees is mandatory.

Stromberg et al. (1988) suggest several basic principles to maximize effective billing and collection whether or not the client is utilizing an HMO or PPO insurance:

• Inform the patient at the outset what the fees are and when they will be collected from the patient (e.g., each session, monthly)
• Wherever possible, require payment at the time of each session
• Maintain careful accounting records so money does not “slip through the cracks”
• Render statements to patients in a timely manner
• Issue appropriate reminders regarding unpaid bills
• Openly discuss with patients possible resolution of payment problems prior to accounts becoming overdue

During a first evaluation, financial considerations should be discussed and a permanent fee should be set. Many psychotherapists customarily raise their fee annually along with either the cost of living or the increase in their rent. Whatever the case, this must be discussed in advance so the patient can consider this in entering long-term treatment. Most clinicians include these issues on the informed consent form or at the intake at the outset of treatment.

Unconscious Fiscal Convenience

Welfel (2002) discusses the term “unconscious fiscal convenience,” introduced by Cummings in 1995. The meaning of this term is the overlooking of important therapeutic dimensions of the sessions because the issues would conflict with the psychotherapist’s financial self-interest. In other words, avoiding risky topics that may stimulate the patient to become annoyed, upset, or wish to leave therapy prematurely. Welfel asserts such clinicians are not malicious in any way, but fail to see their unconscious underlying financial motives. It may be a way of self-preservation or financial survival.

To avoid such practices, psychotherapists should pursue continued peer consultation along with continued consultation with decision-making methods designed for use especially when one’s financial well being is at stake.

A risk in private practice is the conflict of interest inherent in the need to collect the highest fees possible along with the ethical dictate to provide pro bono and sliding fee services (see below for relevant Social Work Standards).

Psychotherapists have all the same financial pressures as everyone does, often without the security of a company-paid retirement plan. Indeed, most private practice clinicians pay for their own medical and disability insurance along with retirement planning, just as many self-employed individuals must do. The temptation to maintain a full-fee patient must not influence the decision to conduct a proper and timely termination when appropriate.

SOCIAL WORK ETHICS CODES THAT APPLY TO FINANCIAL ARRANGEMENTS

NASW Code of Ethics

Standard 1.13 – Payment for Services (a-c)

(a) SWs set fees that are fair and reasonable.

(b) SWs avoid bartering for services.

(c) SWs do not solicit a private fee when the patient is entitled to such services through an agency.

Standard 3.05 – Billing

SWs establish accurate billing practices that accurately reflect who provided the treatment in the setting.

Standard 4.04 – Dishonesty, Fraud, and Deception

SWs should not participate in, condone, or be associated with dishonesty, fraud, or deception (e.g., insurance fraud, false billing)

CSWA Code of Ethics

Standard V – Fee Arrangements (a-e)

“When setting fees, clinical social workers should give consideration to the client’s ability to pay and make every effort to establish fees that are fair, reasonable, and commensurate with the value of the service performed” (CSWA, 2006, p. 10).

(a) CSWs clarify fee collection in the initial contact with patients and take into consideration any financial difficulties the patient may have.

(b) CSWs do not accept referral fees.

(c) CSWs abide by the conditions of contracts under which they operate. If any part of the contract seems unethical, the social worker seeks redress.

(d) CSWs avoid barter for service arrangements.

(e) CSWs who work for agencies do not attempt to switch the clinical patient to his or her private practice.

General rules from both ethics codes:

• Discuss fee structure as early as is feasible
• Discuss fees honestly
• Discuss limits in services at the start (e.g., HMO refusals)
• If collection services are used, patient is informed first and given opportunity to make arrangements to pay

INSURANCE FRAUD

Never falsify! If something did not make it into the chart, you may chart it at any time. Simply chart the new material with the correct date on which it is being charted, using the notation that the event actually occurred on another previous date. For example, “In reviewing the file on February 10, 2001, the following was not mentioned in the progress note for the session of November 11, 2000 and will be noted at this time.” Never “fudge” the date or try to force something into the file at a place or on a previous date for which the note does not belong. It makes the entire record suspect, and will incur doubt about the credibility of the entire record.

Below are various actions that are considered insurance fraud:

• Giving an “insurance diagnosis” -- This means giving a diagnosis that you know the insurance company will reimburse rather than the correct diagnosis that you are actually treating (e.g., some insurance companies will not pay for Axis II personality disorders, or V-codes like parent-child issues). They reason that Personality Disorders are not likely to change a great deal, despite what the psychotherapist and the literature reports (The insurance companies think they know better.). Since V-codes are “conditions,” not mental disorders, they are not always reimbursable.
• Changing the start date of treatment – Sometimes a patient, with the best of intentions, will ask you to change the start date of treatment to coincide with when his or her insurance coverage begins. For example, if the patient begins treatment with you on September 1, but her insurance coverage at her new job does not begin until October 15, the client may ask you to “pretend” as if you began the treatment after her insurance became effective in order to eliminate any preexisting conditions.
• “Preexisting conditions” refers to any medical or mental health diagnosis that was being treated prior to the insured person’s new carrier covering them
• Missed sessions – Insurance will not pay for unattended sessions. It must be indicated on the billing form that certain sessions have been unattended in order to be billing ethically and legally. Indeed, if you are billing parents for a teen’s therapy, or sending bills to a business manager or any third party, clear this up in advance with regard to the confidentiality of the patient. This is particularly important with an adolescent or teen so the minor does not perceive billing statements to parents that indicate missed sessions as a breach of confidentiality.
• Billing at an accurate fee – Psychotherapists may not bill at any other fee than that being charged to the patient. It is unethical and illegal to try to collect the entire fee through charging a higher rate to the insurance company so that the insurance pays the entire fee, or a greater portion of the fee, while the patient pays little or nothing without clearing this with the insurance company in advance. The insurance company will pay their co-payment dependent upon your bill or their contract with the patient, or his/her employer; thus, your bill must be accurate. Some well-meaning psychotherapists will try to bill at a higher rate to collect the entire CO-payment from the insurance company so the patient does not have to pay any fee. This is insurance fraud.

Parity Diagnoses

According to Otten (1998), insurance parity coverage for mental illness demands the same benefits and the same limits for mental illness as for other types of illnesses and diseases. In late 1996, federal legislation was enacted and implemented on January 1, 1998 mandating a limited parity in employee health benefit plans covering mental illness.

Many states had already established parity prior to 1996. The National Alliance for the Mentally Ill (NAMI) convened a meeting of experts who had firsthand knowledge of the effects of parity in June of 1996. “Participants included officials of states that required parity laws for treating mental illness in employee health plans, executives of self-insured corporations that offer some sort of parity to their own employees and of firms that manage behavioral health care coverage, federal officials and researchers who were assessing evidence from states and employers for its relevance in implementing the new federal parity legislation, researchers and advocates” (Otten, 1998, p. 3).

Each state has made its own statutes regarding the Mental Health Parity Act and their version of compliance and conformity with this act. Most psychotherapists can easily become familiar with the diagnoses that are included within the Parity Act that are exempt from limitations by managed care and/or insurance company dictates with regard to number of sessions or amount of treatment.

For example, in 2000, California enacted Assembly Bill 88 where nine specific diagnoses were included in the exempt category referred to as “severe mental illnesses” (SMI) and “serious emotional disturbance” (SED) that are to be treated with the same status as severe physical illnesses as far as unlimited treatment is concerned. These diagnoses stem from the DSM-IV-TR:

• Schizophrenia
• Schizoaffective Disorder
• Bipolar Disorder
• Major Depressive Disorder
• Obsessive Compulsive Disorder
• Panic Disorder
• Eating Disorders
• Serious Emotional Disorders in Children and Adolescents
• Pervasive Developmental Disorder

It is the requirement of psychotherapists to know the parity diagnoses in his or her state in order to understand the insurance billing practices of the state in which he or she practices. Proper billing and explanations to clinical patients is an ethical mandate.

PROFESSIONAL CONSULTATION

The six most important words in therapy are:

• Consult
• Consult
• Consult
• Document
• Document
• Document

All kidding aside, in legal proceedings and licensing violation proceedings, the defending psychotherapist is often asked if he or she sought a consultation when faced with a difficult or complex situation or personal problem. Consultation is the standard of care that is used to reduce counter-transference and burnout, and to support a treatment plan with dangerous patients.

Several precedents were set in the case of Roberts-Henry v. Richter (1989) in which Dr. Richter, a Colorado psychiatrist, had sexual relations with his patient ten days after terminating therapy for the specific purpose of having a sexual affair (both parties were married and the patient had sought therapy due to guilt over having had an affair). In Colorado at the time, it was not illegal to have sex with a patient ten days post termination, or to terminate solely for the purpose of having a sexual relationship. During the trial, the attorneys for the plaintiff, who knew the defendant had personal problems at the time of the sexual affair with the plaintiff, asked the psychiatrist “Did you return to personal therapy at the time? Did you seek consultation with another professional in Colorado? How many psychiatrists do you know in Colorado? Why didn’t you seek consultation with another psychiatrist before having sex with a patient?” Even here, it became an important part of the case against the defendant that he failed to seek consultation. The three-man, three-woman jury found Plaintiff Roberts-Henry 18% responsible for her own damages, and Defendant Richter 82% responsible for her damages of Post-Traumatic Stress Disorder. Several precedents were set in this case:

1. Plaintiff Roberts-Henry later addressed the Colorado legislature drafting a bill to limit the ability of the defendant’s attorney to investigate the plaintiff’s sexual history

2. The Plaintiff addressed the Colorado legislature drafting a bill to make sex with a patient illegal, after which six other states (1989) followed suit. Note: Each psychotherapist is mandated to know his or her state’s laws regarding sex with current and former patients.

Why and when seek consultation? (Falender & Shafranske, 2004; Clayton & Bongar, 1994)

• To document the psychotherapist was practicing the standard of care by seeking consultation
• To get ongoing one-on-one continuing supervision
• To obtain a second opinion
• To deal with counter-transference or burnout issues
• To avoid impaired judgment
• For any “red flag” issues, e.g. danger to self or other, abuse issues
• Uncertainty about diagnosis
• When treating special populations, e.g. cultural issues, AIDS/HIV
• Any legal or ethical consideration
• Lack of momentum or improvement in the treatment
• When using new techniques with no established standard of care

SOCIAL WORK CODES OF ETHICS THAT APPLY TO CONSULTATION

NASW Code of Ethics

Standard 2.05 - Consultation (a-c)

(a) Always seek consultation when it is in the best interests of the patient.

(b) Seek consultation only from others who have demonstrated expertise, knowledge, and competence related to the subject of the consultation.

(c) Disclose the least amount of patient information necessary to achieve the purpose of the consultation.

Standard 3.01 – Supervision and Consultation (a-d)

(a) Those who provide consultation and supervision must have the proper knowledge and skill.

(b) Those who provide consultation and supervision are responsible for setting clear culturally sensitive boundaries.

(c) SWs should not participate in dual or multiple relationships with supervisees in which there is a risk of exploitation.

(d) Evaluation of supervisees should be done in a manner that is fair and respectful.

CSWA Code of Ethics

Standard 4 – Competence (a&c)

(a) CSWs are aware of their own limitations and, when necessary, utilize consultants or supervisors. The clinician receiving the consultation is responsible for ensuring the consultant is a recognized member of the profession and is qualified to carry out the required service.

(c) CSWs are responsible for remaining abreast of knowledge and developments in their field that may benefit patients by getting ongoing supervision or consultation and continuing education.

When do we need patient permission for consultation?

It is generally understood that psychotherapists may get “professional consultation” without the consent of the individual if the demographics of the person are disguised carefully.

Who are good choices for professional consultants?

Consultants should be senior therapists, or experts in their fields such as attorneys, pharmacists, medical doctors, substance abuse experts, ethics committees, and experts in specific cultures and ethnic groups.

Unfortunately, many psychotherapists fail to seek consultation due to lack of finances or professional arrogance. Professional consultation is one of the most powerful forms of evidence against a claim that a mental health professional was exploiting a patient's transference for personal gain (Behnke, Preis, & Bates, 1998). Past studies indicate that many psychotherapists failed to utilize consultation, which was detrimental to their patients (Clayton & Bongar, 1994). Experts note that failing to consult when appropriate may lead to negligence in malpractice cases (Kapp, 1987). In fact, Applebaum and Guthiel (1991) found “consultation together with documentation to be the ‘twin pillars of liability prevention’” (p. 201). However, now that consultation has “come out of the closet” such that all insurance companies are offering free consultation services to their insured, virtually all psychotherapists are aware that consultation is the standard of care and available to everyone.

Question 1

When must a psychotherapist seek consultation?

1. To learn how to earn more money
2. When there is a lack of momentum in the treatment with a patient
3. When the therapist wants to meet new professionals to network

NOTE: See Section D – Professional Consultation for review of answer material below.

Of course, the answer is (b). There are a number of reasons in Section D to seek formal consultation, but with answer (b), the psychotherapist must seek consultation.

Question 2

Therapist Jones does not want her new patient to stop bringing in her 7-year-old son because the psychotherapist honestly thinks she can help the mom and the son to get along better, and she wants to help them improve their lives. For this reason, she decided to single out the mom and bill the mom’s insurance company as if the mom is coming in for Generalized Anxiety Disorder without the son. This is an example of:

1. Insurance fraud
2. What a psychotherapist needs to do in the helping professions
3. The only way a psychotherapist can get paid in 2005
4. Ethical because they would have to drop out of therapy if the psychotherapist billed it any other way as they couldn’t pay for therapy

NOTE: See Section D – Insurance Fraud for review of answer material below.

Of course, the answer here is (a) because any type of collusion or form of lying to an insurance company is insurance fraud, despite the fact that Jones wants to help her patient to get services. It would be safer for the psychotherapist – and better modeling for the patient – for Jones to simply lower the fee to a rate the patient can afford.

Question 3

When a psychotherapist is overly concerned with his or her finances versus helping the client, experts have termed this:

1. Counter-transference
2. Burnout
3. Unconscious fiscal convenience

NOTE: See Section D – Fees & Financial Arrangements for review of answer material below

Unconscious fiscal convenience is insidious especially because it is unconscious by definition. It is easy to get caught up in one’s own financial issues while overlooking what is best for the patient. This section discussed methods suggested to prevent unconscious fiscal convenience.

REFERENCES

Applebaum, P., & Guthiel, T. (1991). Clinical Handbook of Psychiatry & Law. Baltimore: Williams & Wilkins.

Behnke, S., Preis, J., & Bates, R. (1998). (1998) The essentials of California mental health law. New York: W.W. Norton.

Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: ethical, legal, and clinical considerations. Ethics & Behavior, 4, 43-57.

Cummings, N. (1995). Unconscious fiscal convenience. Psychotherapy in Private Practice, 14, 24-25, Pacific Grove, CA: Brooks/Cole.

Falender, C. A., & Shafranske, E. P. (2004). Clinical supervision: A competency-based approach. Washington, DC: American Psychological Association.

Kapp, M. (1987). Interprofessional relationships in geriatrics: Ethical & legal considerations. Gerontologist, 27, 547-552.

Stromberg, C., et al. (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.

Welfel, E. (2002). Ethics in Counseling and Psychotherapy: Standards, Research & Emerging Issues. Pacific Grove, CA: Brooks/Cole.

LEARNING OBJECTIVES FOR SECTION E

• Identify countertransference reactions in order to reduce harmful attitudes and/or behaviors related to patients
• Identify and prevent burnout
• Avoid multiple relationships

DEFINITION OF COUNTER-TRANSFERENCE

Kernberg (1965) defined counter-transference (CT) as “the analyst’s conscious and unconscious reactions to the patient in the treatment situation which are reactions to the patient’s reality as well as to his transference; and also to the analyst’s own reality needs as well as to his neurotic needs” (p. 38). Heimann (1950) was one of the first to offer several revisions of the CT concept. She expanded the term CT to include all of the feelings the therapist has toward his or her patient. Fundamentally, CT is considered important because it can impact the therapy in a number of negative ways – premature termination, inappropriate therapist reactions, lack of therapist insight, and failure to properly treat the patient (Harmell, 1987, 1999). Thus, it is important for all therapists to make efforts to remain aware of their CT reactions to patients in order to reduce harmful attitudes and/or behaviors related to patients (Harmell, 1987).

Additionally, CT is a wonderful tool by which psychotherapists can gain insight into nonverbal messages from patients, become aware of their own visceral experiences related to patients, and use it as a valuable feedback tool regarding the patient. Early on in the history of psychotherapy, many powerful influences helped to reduce therapist avoidance of their CT reactions by reframing the concept positively (Heimann, 1950; Grossman, 1965; Epstein & Feiner, 1979; Racker, 1953, 1968; Langs, 1982).

Harmell (1987) studied the relationship between CT and three variables (1) Level of Therapist Experience, (2) Theoretical Orientation, and (3) Therapist Self-Awareness, both independently and as a predictive unit. It was found with CT subscales that CT is best examined as clusters of specific attitudes and behaviors, rather than a unidimensional global concept. Clearly, CT is a complex topic to study and evaluate.

Psychotherapists are constantly confronted with boundary challenges. Steinman et al. (1998) enumerated several common areas of concern with regard to CT.

• Asking personal questions: Many psychotherapists find it withholding and difficult not to answer personal questions when a client asks. Most psychotherapists will only answer questions that are public knowledge (e.g., teaching affiliations, professional associations), and questions that, if answered, the psychotherapist believes – after due consideration or consultation -- will be therapeutic to the client. Most licensing boards advise psychotherapists to inform clients of any information related to the status of the license.
• Flirting: Asking the psychotherapist to meet outside the office, at a restaurant, or hotel is a dangerous precedent to start, and a difficult procedure to stop. It is generally not appropriate to meet outside of the office for most reasons short of an emergency or specific methods that require out-of-office procedures.
• Asking Favors: It is difficult to turn down a patient’s request to reduce a fee, loan a book, or tell personal details of one’s life. However gratifying, this favor is not the purpose of therapy and is often the beginning of the “slippery slope” that leads to poor decision-making with regard to ethics.
• The new patient talking negatively about a past therapist: This is a very seductive attempt to flatter you and compare you favorably to the former therapist. It is certainly enjoyable to hear one is a “better” therapist and one is “doing a better job” than the last therapist, but it is mandatory to remember the reasons for such disclosures.
• Asking for advice: “What would you do if you were me?” This is such a common question! As psychotherapists, we do not answer such questions directly in most cases. This is not helpful to a client, and not why the client is attending sessions. The real ethical problem here is the client could take the “advice” only to find it wrong, ineffective, or even harmful.

Psychotherapists must remain vigilant to CT reactions in order to avoid forcing opinions, feelings, or inappropriate feelings upon the client (Harmell, 1999). The primary methods of handling CT and burnout consist of:

• Taking time off from work
• Taking vacations away from the office and out of town
• Peer and senior consultation
• Literature review of the particular topic of concern
• Personal therapy
• Hobbies and personal time

NOTE: See Section E – Definition of Counter-transference for review of answer material below.

Question 1

Who was the first person to expand the concept of counter-transference?

1. Freud
2. Heimann
3. Langs

The answer is (b). Heimann was the first to expand the definition of CT to include all of the feelings, positive and negative, of the psychotherapist.

Question 2

Identify two routine boundary challenges (Steinman et al., 1998) most psychotherapists confront in a therapeutic relationship:

1. Patient asking therapist a personal question; Patient asking for advice
2. Sleeping with patients; Loaning money to patient
3. Patient borrowing money from therapist; Patient loaning therapist money

As discussed in Section E, the answer to Question 2 is (a).

Burnout and the “Troubled” Therapist

Use of the term “impaired” is protected by federal law and can only be used in context with individuals who qualify under the Americans with Disabilities Act. Thus, in the former research with respect to “impaired” therapist, the terminology will be referred to hereafter as the “troubled” therapist despite the fact that the authors below used the term “impaired,” which was unprotected by the ADA at the time of printing (C. Falender, personal communication, November 10, 2004).

Many factors can negatively influence psychotherapists’ ability to remain effective personally and professionally; these include substance abuse, illness, counter transference, and burnout. Stadler (1990) refers to the troubled therapist as a person who has lost the ability to resolve his or her stressful events. He or she may have lost the ability to deal with inner conflicts activated by client material, and to stabilize and facilitate patient growth. When the goal switches from stabilizing the client to stabilizing the therapist, burnout can be strongly suspected. Emerson and Markos (1996) suggest that sexual exploitation is a strong manifestation of therapist problems that have gone out of control.

Psychotherapists who become sexually involved with their clients share certain characteristics that reflect the troubled therapist (Emerson & Markos, 1996):

• Fragile self-esteem
• Difficulty establishing intimacy in his or her own personal life
• Practicing in isolation
• Needing to rescue clients
• Needing to be reassured about one’s own attractiveness
• Possible substance abuse
• Feeling of poor self-worth

Benningfield (1994) identifies several other characteristics, other than those related to sexual involvement, that have been associated with burnout and the troubled therapist:

• Lack of empathy
• Extreme loneliness
• Poor social skills
• Social isolation
• Paying little attention to, and denying the possibility of, harm to others
• Complete preoccupation with one’s own needs
• Denial of professional responsibility for one’s actions with patients

SOCIAL WORK ETHICS CODES THAT APPLY TO COUNTER-TRANSFERENCE

NASW Code of Ethics

Standard 2.09 – Impairment of Colleagues (a-b)

(a) SWs who know of another social worker who is impaired due to personal problems, psychological distress, substance abuse, or mental health difficulties that interfere with practice effectiveness, must approach that colleague when it seems feasible and attempt to assist the colleague in taking remedial action.

(b) SWs who believe a colleague is not taking steps to remediate his or her impairment should take action through appropriate channels established by various agencies or employers.

Standard 2.10 – Incompetence of Colleagues (a-b)

(a) SWs who are aware of a colleague’s incompetence should consult with that colleague and assist that person in getting remedial help.

(b) SWs who believe a colleague is not taking steps to remediate his or her impairment should take action through appropriate channels established by various agencies or employers.

CSWA Code of Ethics

Standard IV – Relationships with Colleagues (e)

CSWs act with integrity in their relationships with colleagues and members of other professions. They know and take into account the traditions, practices, and areas of competence of other professionals and cooperate with them fully for the welfare of clients.

(e) CSWs who have knowledge of a colleague’s impairment misconduct, or incompetence attempt to bring about remediation through appropriate means through appropriate regulatory bodies.

General ethical issues related to counter-transference and staying out of trouble

It is important for psychotherapists to practice within their area of competence, training, experience, and education. Burnout is more likely when psychotherapists work beyond their competence and “freelance” rather than use tried and true methods. Freelancing is a term that refers to the failure to research the best and most effective methods of clinical practice for a particular diagnosis, in favor of simply trial and error without a formal or thoughtful treatment plan that is relevant and effective.

NOTE: See Section E – Burnout & the Troubled Therapist for review of answer material below:

Question 3

The term “impaired” with regard to psychotherapists is now protected by federal law. Why did this happen?

1. The term is too broad to be descriptive
2. The term is not descriptive enough for psychotherapy
3. The term is protected by federal law for Americans with Disabilities

The term “impaired” is now only used for people who are covered under the Americans with Disabilities Act that makes the answer to Question 3, (c).

MULTIPLE RELATIONSHIPS

In Harmell’s 1998 article “Multiple Multiple Relationships Relationships,” she noted that ethics committees and licensing boards have always had difficulty defining the terms dual and multiple relationships. This began with major figures in the field such as Freud and Jung, both of whom straddled the line with their patients, although the “line” had not yet been solidly set. Since the article was written in 1998, the author did not have a chance to include the more recent newsworthy events defining sexual behavior credited to former President Clinton when he appeared to segregate oral sex from sexual behavior entirely, giving a new slant to sexual terminology (not to mention the presidential definition of the word “it” as it related to sexual activity). This is mentioned here to demonstrate the difficulty inherent in a fairly open society such as that of the United States in coming to a consensus on sexual terminology.

Definitions

Sonne (1994, p. 376) defines multiple relationship as “situations in which the psychotherapist functions in more than one professional relationship, as well as those in which the psychotherapist functions in a professional role and another definitive and intended role, as opposed to a limited and inconsequential role growing out of and limited to a chance encounter.” In other words, multiple roles can be concurrent, or follow each other. Either way, it is generally considered a boundary violation. Positive limit-setting is something all therapists must master by placing restrictions when responding to patient requests and reframing their response to therapeutically meet the patient’s legitimate need.

Boundary Violations

Because patients discuss emotional and highly personal matters, intimacy is created. It is the psychotherapist who is responsible for maintaining proper limits, keeping the therapy focused, and handling counter-transference and needs for personal gratification without involving the patient inappropriately (Harmell, 1998). Some psychotherapists try to rationalize conducting a business relationship with a patient as well as a therapeutic one simultaneously or after the therapy is over. According to the above definition, this constitutes a multiple relationship and is unethical.

Risky Work Settings

Koocher and Keith-Spiegel (1998) note that “the majority of cases involving boundary blurring (including sexual ones) occurred among therapists who maintained individual practices, often in isolated offices away from other mental health professionals. Sometimes, the setting was the therapist’s own home” (p. 176). The main problem identified by ethics committees in the early 1980s was practicing in isolation with no provision for outside professional contact on a regular basis where professional identity can solidify.

Conducting therapy in one’s home, according to Koocher and Keith-Spiegel (1998) is not desirable, but is not inherently inappropriate if the therapy room is a professional office with private entrance rather than the therapist’s personal home.

Risky Clients

Clients who have been victims of violent attacks of abuse are, due to trust issues, particularly well-suited to clear boundary settings despite frequently attempting to blur the boundaries (Borys, 1994). Patients with self-esteem or individuation problems will try to test the boundaries. The therapist who weakens the boundaries for these (or any) clients by taking them to lunch, giving gifts, or overly self-disclosing may be unwittingly colluding with the pattern and losing professional focus. Patients who have suffered many deprivations are particularly vulnerable and often “test” the boundaries therapists set (Borys, 1994).

Services to Friends and Family Members

Psychotherapists are often asked for advice from people who are not patients. Friendships and family relationships exist in a different context than therapeutic relationships. I hope that being mutually supportive and without necessarily having therapeutic goals is the center of a friendship with a therapist. It is unwise to provide professional advice to friends or family in any but the most urgent situations. Unlike family and friendships, therapy relationships are designed to progress rapidly toward therapeutic goals and terminate at some future point. The Codes of Ethics warn psychotherapists to refrain from taking on professional obligations when preexisting relationships could create a risk of harm (Harmell, 1998).

Socializing or Becoming Friends with Patients

Most psychotherapists are fully aware that it is precisely the difference between psychotherapy and friendship that accounts for its effectiveness. Friendships are formed on an equal footing, each person voluntarily agreeing to the relationship. Research suggests a positive therapeutic relationship can be destroyed by the impact of a social relationship with a client after the termination process. Attending special events (e.g., weddings, graduations) is rarely done in a large city and should never be used as a vehicle for socializing. Borys and Pope (1989) found that few therapists attend such events, although they do not see a problem with doing so for therapeutic reasons. The best rule of thumb is – if you think that it might be a boundary violation, don’t do it!

Gifts

Psychotherapists are often appreciated for what they do (e.g., teach psychotherapy, lecture, volunteer). Normally gratitude is expressed with a written note, verbal expression of thanks, or some small material token such as homemade cookies or a holiday ornament that presents no ethical violation. Most psychotherapists, unless they work in an agency where there is a policy of not accepting gifts of any kind, feel that refusing small gifts would reject or insult the patient. However, inappropriate gifts (e.g., extremely expensive, nude calendar, personal items) should be diplomatically refused (Borys & Pope, 1989). Giving gifts to clients should be carefully considered in advance. Some gifts might enhance the client’s professional identity (e.g., professional journal) while others are confusing and cause anxiety. When in doubt, seek a professional consultation.

STATE LAWS THAT APPLY TO MULTIPLE RELATIONSHIPS

No psychotherapist is immune to the possibility of engaging in an inappropriate relationship with a client (Olarte, 1997). Sexual misconduct is considered one of the most serious ethical violations and is, unfortunately, a very common allegation in malpractice suits, licensing violations, and ethics complaints. “Therapist-client sexual contact is arguably the most disruptive and potentially damaging boundary violation” (Corey, Corey, & Callanan, 1998). Experts agree that when sexual activity begins, therapy as a helping process ends (Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1993). Some psychotherapists maintain, “Once a patient, always a patient;” however, the American Psychological Association Ethics Committee and task force has declined to make a blanket prohibition against sexual intimacies forever after the two-year prohibition subsequent to a “normal” termination. The controversy exists primarily between rural and large city psychotherapists, especially where the population in a small town may be a few thousand people.

It is important that LCSWs become familiar with the state statutes that cover violations of this well-known prohibition against patient-therapist sexual relationships. The Ethics Codes are the same for all LCSW’s.

Many states proclaim a blanket prohibition against sexual activity between therapist and patient in any of the three situations that follow:

(a) While in therapy,

(b) Within two years of a normal termination

(c) By means of “therapeutic deception.” – By therapeutic deception, the legislature means the use of coercion to coax a client into inappropriate sexual behavior (e.g., “I can only help you if you take off your clothing and let me massage you.”).

Some states define a therapist having sex with a client as a crime.

Some states require that all therapists have copies of a brochure regarding sexual relationships with a therapist. In California, for example, this brochure, called Professional Therapy Never Includes Sex, must be available for distribution if and when any client discloses he or she has either had a sexual relationship with a former or current psychotherapist, or the therapist made a suggestion of such activity. Contact your state licensing board for state-specific resources at http://www.swes.net/licensing/boards.html.

Purpose of the Brochure and Current Psychotherapist’s Responsibility

The most current Professional Therapy Never Includes Sex was published in 2002 in California under the auspices of the Department of Consumer Affairs. The primary purpose of the brochure is to provide information and guidance to patients who have been subjected to possible inappropriate sexual activity, contact, or suggestion by their psychotherapists. The brochure must be provided by the current psychotherapist to a current patient who discloses he or she has experienced such activity in a former or current psychotherapy relationship.

The current psychotherapist has the duty of reviewing the brochure and its options with the patient who reports abuse by a former or current (seeing the patient simultaneously with you) psychotherapist. However, you may not contact any authorities such as an ethics committee or licensing board to report the unethical psychotherapist. The only person who may take such action is the abused patient him or herself, unless the abused patient is a minor. If the person who discloses he or she was abused by a former or current psychotherapist is a minor, this must be reported as child abuse, despite the wishes of the abused patient. Most likely, the minor’s guardian should be brought in as well.

Contents of the Brochure

The Brochure is written for patients who have been abused; it is not for the benefit of psychotherapists. Therefore, it is written for people who are not familiar with the laws or ethical standards regarding sexual contact between patients and their therapists.

The Brochure begins with a simple and brief definition of terms that explains the difference between types of psychotherapists (psychiatrist, psychologist, licensed marriage and family therapist, etc.).

The brochure continues by explaining what the warning signs to be aware of are in psychotherapists who are exploiting patients sexually and preparing patients to be exploited sexually (e.g., making sexual jokes, dressing inappropriately, scheduling late-night appointments). There is a section explaining what feelings the patient who has been sexually exploited might experience.

The where to start section gives general ideas such as “talk to someone,” and suggests calling a crisis center, a professional association, finding a new therapist experienced in patient abuse, or contacting the licensing board.

Importantly, it empowers the patient by giving the reporting options and telling the abused patient it is up to him or her if reporting is something he or she wishes to do. It directs the patient to further detailed discussions of how to report the offending psychotherapist:

1. Taking Administrative Action – Licensing Boards
2. Professional Association Action – Ethics Committees
3. Civil Action – Filing a civil suit for malpractice
4. Criminal Action – Psychotherapist sex with a patient is a crime; the patient can call the local law enforcement agency or sexual assault unit to make a report of the criminal action, and/or the patient can call the local victim-witness assistance program or district attorney or call 1-800-VICTIMS (842-8467)

The next section in the brochure is finding a therapist that gives suggestions such as asking a friend, calling a professional association, or contacting a sexual assault center. It concludes with a frequently asked questions section and a patient’s bill of rights.

NOTE: See Section E – State Laws that Apply to Multiple Relationships for review of answer material below.

SOCIAL WORK ETHICS CODES THAT APPLY TO MULTIPLE RELATIONSHIPS

NASW Code of Ethics

Standard 1.09 – Sexual Relationships (a-d)

(a) Under no circumstances do social workers have sexual activity with patients.

(b) SWs do not engage in sexual activities or sexual contact with patient’s relatives or others who have a close personal relationship with the patient. Social workers do not have sexual contact with relatives of their patients. The social worker maintains the entire burden for setting clear and appropriate boundaries, culturally and otherwise.

(c) SWs do not engage in sexual activity with former patients except under the most extraordinary circumstances.

(d) SWs do not provide services to those with whom they have had sexual relationships.

Standard 1.11 – Sexual Harassment

SWs do not sexually harass clients, including sexual advances, solicitation, and requests for sexual favors.

CSWA Code of Ethics

Standard 3 – Relationships with Clients (a-b)

(a) CSWs are responsible for setting clear boundaries about dual and multiple relationships. The do not take chances where there is an opportunity for patient exploitation, especially when the CSW is seeing two or more patients who know each other.

(b) CSWs do not engage in sexual activity with former patients except under the most extraordinary circumstances. CSWs do not provide services to those with whom they have had sexual relationships.

In general, most agree that other acts that are unethical dual relationships include borrowing money from a patient, hiring a patient, doing business with a patient, having a close personal relationship with a patient, and having close relations with a patient’s relative.

REFERENCES

Benningfield, A.B. (1994). The impaired therapist. In G.W. Brock (Ed.), American Association for Marriage & Family Therapy Ethics Casebook (pp. 131-139). Washington, DC: Amer. Assn. for Marriage & Family Therapy.

Borys, D. (1994). Maintaining therapeutic boundaries: The motive is therapeutic effectiveness, not defensive practice. Ethics and Behavior, 4 267-273.

Borys, D., & Pope, K. (1989). Dual relationships between therapist and client: A national study of psychologists, psychiatrists, and social workers. Professional Psychology: Research and Practice, 20, 283-293.

Bouhoutsos, J., Holroyd, J., Lerman, H., Forer, B, & Greenberg, M. (1983). Sexual intimacy between psychotherapists and patients. Professional Psychology: Research & Practice, 14,185-196.

Corey, G., Corey, M., & Callanan, P. (1998). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.

Emerson, S., & Markos, P. (1996). Signs and symptoms of the impaired counselor. Journal of Humanistic Education and Development, 34, 108-117.

Epstein, L., & Feiner, A. (1979). CT: The therapist’s contribution to treatment. Contemporary Psychoanalysis, 15, 489-513.

Grossman, C. (1965). Transference, CT, and being in love. Psychoanalytic Quarterly, 34, 249-256.

Harmell, P.H. (Sep-Oct, 1998). Multiple Multiple Relationships Relationships. The Los Angeles Psychologist.

Harmell, P.H. (1987). The Effects of Therapist Self-awareness of Counter-transference. Unpublished doctoral dissertation.

Heimann, P. (1950). On counter transference. International Journal of Psychoanalysis, 31, 81-84.

Kernberg, O. (1965). Notes on counter transference. Journal of the American Psychoanalytic Association, 13, 38-56.

Koocher, G., & Keith-Spiegel, P. (1998). Ethics in Psychology. NY:Oxford University Press.

Langs, R. (1982). CT & the process of cure. In: S. Slipp (Ed.) Curative Factors in Dynamic Psychotherapy. pp. 127-152. NY: McGraw-Hill.

Olarte, S. (1997). Sexual boundary violations. In The Hatherleigh Guide to Ethics in Therapy (pp. 195-209). NY: Hatherleigh Press.

Racker, H. (1953). A contribution to the problem of CT. International Journal of Psychoanalysis, 34, 313-324.

Sonne, J. (1994) Multiple relationships: Does the new ethics code answer the right question? Professional Psychology: Research and Practice, 25, 336-343.

Stadler, H. A. (1990). Counselor impairment. In B. Herlihy & L. Golden (eds.), AACD Ethical Standards Casebook (4^th ed.) (pp. 177-187). Alexandria, VA: American Association for Counseling and Development.

Steinman, S. O., Richardson, N. F., & McEnroe, R. (1998). The Ethical Decision-Making Manual for Helping Professionals. Pacific Grove: Brooks/Cole.

LEARNING OBJECTIVES FOR SECTION F

• Review principles of family law
• Become familiar with the current child abuse reporting laws in one’s own state
• Recognize new 2005 child abuse reporting laws and terms
• State who should report, when to report, how to report
• Explain the penalty for failure to report

AUTHOR DISCLAIMER

This document is in no way meant to recommend what is and what is not reportable as child abuse. Child abuse reporting laws are State specific laws, and consequently vary from state to state. These laws are based upon the Federal laws for child protection. Be sure to check the specific statutes in your state by going to http://nccanch.acf.hhs.gov/general/legal/statutes/search/

Child abuse reporting law is constantly changing, and psychotherapists have the responsibility to maintain updated information on current child abuse requirements by calling the Child Welfare Department, attending child abuse workshops, and perusing documents such as those referenced here. This section is a guide to child abuse issues.

REPORTABLE ACTS OF CHILD ABUSE

In 1997, the National Committee to Prevent Child Abuse released a report that shocked America – more than three million American children suffer from abuse and neglect (Department of Justice [DOJ], 2000). Gathering accurate information is difficult, as people are hesitant to report abuse for numerous reasons. Some of these reasons include fear of having children removed from the home, fear of retaliation by the abuser, domestic violence issues in the home, and unreported events of child abuse treated as accidental injury. Even with this phenomenon of underreporting, California for example, received 540,577 reports of child abuse incidents in 1999 (DOJ, 2000).

Frequently Asked Questions (and answers!)

The following questions are often asked during child abuse workshops because the answers are misunderstood and not widely taught or known. Here, the answers will be given directly along with the question and will be cited in the text.

Question 1

You are walking through “K-Mart” and see a person suddenly reach over and violently slap the child he is with across the face. Are you mandated to report this?

Answer

According to the Child Abuse Handbook (DOJ, p. 31):

Whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of, or observes a child whom, the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect…then a report is required.

(1) This is not a patient being seen in your office and there is not an established duty of care, and (2) You are not in an activity that is within the scope of your employment or profession at the time. However, you may take action to stop the abuse or report it as a citizen, not as a mandated reporter.

Question 2

You are giving a professional lecture at a preschool when you see someone in the back of the room violently shake what appears to be a three-month-old infant in her arms. What should you do?

Answer

(1) This is not a patient being seen in your office and there is not an established duty of care, but (2) This is an activity that is within the scope of your employment or profession at the time. You must take action to report this as child abuse.

Question 3

Your adult patient tells you her thirteen-year-old witnessed her being “slapped around” by her partner last night. Is this reportable under some State laws?

Answer

October 9, 2004, personal communication Mr. John Abaruscato, Department of Children and Family Services: This is a mandated report under “emotional abuse.”

There has always been a great deal of confusion with regard to reporting emotional abuse or emotional suffering. The more the legislature attempts to clarify by eliminating and reinstating laws, the more confusing it becomes to most clinicians who are charged with properly trying to interpret the laws. Few people claim, including attorneys, to know how and when to report emotional abuse. Most workshops refuse to discuss this entirely.

MANDATED REPORT – UNJUSTIFIABLE MENTAL SUFFERING

Unjustifiable mental suffering includes unjustifiable corporal punishment. This includes causing injury or leaving scars. It also may include slapping, spanking, grabbing a child excessively to correct behavior, flagrant disregard for health and safety, and anything that purposely results in psychological trauma (Harmell, 2001).

Question 4

You are intern Lewinsky at the Clinton Mental Health Center. You are certain you have reasonable suspicion child abuse has occurred to a child you are treating. Your supervisor does not agree with you and refuses to let you report this. What do you do?

Answer

“Supervisors or administrators may not impede or inhibit reporting by a mandated reporter, nor may they take any actions against the reporter for making a report. However it is permissible to establish internal procedures to facilitate reporting and apprise supervisors and administrators of reports, so long as these procedures are not inconsistent with the Reporting Act” (Child Abuse Handbook, DOJ, p. 33).

Question 5

Your patient of four months tells you about her next-door neighbor that is constantly neglecting to feed and clean up her twelve children. Is this an instance where you are a mandated reporter?

Answer

October 9, 2004, personal communication Mr. John Abaruscato, Department of Children and Family Services: Report “hearsay” when your patient has personally the abuse. If your patient is unclear if the abuse is occurring, it is not reportable.

Question 6

Your forty-two-year-old patient tells you that he was abused by his clergy person when he was between the ages of ten and thirteen. Is this reportable now?

Answer

This could be reportable. The mandated reporter must consider if the clergy person is still working with children, or if any children are in danger currently.

Question 7

Your sixteen-year-old patient tells you that she is having intercourse with her eighteen-year-old stepbrother. Is this reportable as child abuse?

Answer

This could be reportable as child abuse if it were considered incest.

The Child Abuse Handbook (DOJ, p. 17) defines incest as:

Sexual activity between certain close relatives (e.g. parents and children, siblings together, grandparents and grandkids); intra-familial abuse means sexual activity between persons in a family setting (e.g. stepparents and stepchildren, boy/girlfriend and children, etc.)

Question 8

A clergy person acquires knowledge during a “penitential communication” that the parishioner is abusing a child. Must the clergy person report this?

Answer When a clergy person receives information through a “penitential communication,” he or she “has a duty to keep those communications secret… he or she is not required to report abuse or neglect” (DOJ, 2000, p. 2).

Historical Perspective on Child Abuse

In 1989, Zigler and Hall conducted a brief review of the existing literature on child abuse. They discovered it was not uncommon for infants to be sacrificed in order to dedicate public structures and bridges during Roman times. The Roman doctrine of “patria potestas” gave fathers nearly absolute power to do whatever they wished to and with their children, making them the most unprotected class of all. From the middle ages to the industrial revolution, child labor abuses were common enough to require child labor legislation in both the United States and other countries.

In 1874, a New York social worker became involved in the abuse of Mary Ellen Wilson, who had not only been severely beaten, but was also confined with chains and deprived of food by her adoptive parents (Zigler & Hall, 1989). Interestingly, Henry Berg, the head of the Society for the Prevention of Cruelty to Animals, pushed the Mary Ellen case into the court system. Eventually Mary Ellen’s adoptive parents were jailed, and the Society for the Prevention of Cruelty to Children was formed.

The general “spark” that fired public and professional interest in the area of child abuse was an article in the Journal of the American Medical Association by C. Henry Kempe where he discussed the term battered child syndrome (Zigler & Hall, 1989). Another significant advancement associated with Kempe’s work was the establishment of the National Center for Child Abuse and Neglect (Kempe, 1998).

The McMartin Case – The initial Child Abuse Case

In 1983 in a cozy town by the beach in California, a news story broke that accused the McMartin Preschool teachers (including the owner and her son), of sexual abuse of the children in the school. This was one of the first cases of its kind, where there were a number of very young children who were telling their parents and the police about ritual-type sexual abuse involving devil worship and the like.

The psychotherapists who conducted the interviews of the children and the families involved had very few guidelines to follow, and were pioneers who were paving the road for those who were to follow. These therapists taught us new ways to avoid the pitfalls of interviewing young children who were telling adults of abuse. They set a new stage for how to do protective and effective interviews (to be discussed below).

In the McMartin case, there were 207 counts of conspiracy and molestation with 60,000 pages of court records. Testimony was taken up to five years after the abuse was claimed, which made the testimony less credible. None of the defendants was found guilty.

Child Abuse Interviews and Preparing for Testifying

An interviewing protocol is a group of procedures used to receive information from potential child victims of sexual abuse. As mentioned earlier, the interviewers in the McMartin case and other interviewers have come under attack. Warren, Woodall, Hunt, and Perry (1996) reviewed failed prosecutions and convictions that were overturned because of potentially suggestive pretrial techniques used in questioning possible child victims. Despite the fact that there is no single accepted protocol for interviewing suspected victims of child sexual abuse, various techniques that seem benign have been called into question (Kemp, 1998).

Using research along with suggestions from expert interviews of sexually abused children, L, Dennison Reed (1996) developed general guidelines for interviews to reduce the risk of accusations about suggestive or coercive interview techniques. These are summarized below:

Setting

• Make the child feel comfortable by doing the interview in a place where he or she feels comfortable

Interviewer behavior and attitude

• Keep an open mind
• Remain friendly
• Build rapport before exploring sensitive issues

Clarify your expectations

• Emphasize being truthful, not pretending
• Make certain to tell the child you do not know anything about the case yet
• Let the child admit not knowing anything
• Let the child admit to not remembering rather than guessing
• Assure the child when you repeat a question it does not mean his or her answer was wrong
• Give the child permission not to answer any questions
• Encourage the child to disagree with you
• Encourage the child to correct you when you make mistakes

Be thoughtful about how you ask your questions

• Keep in mind it is easy to mislead a child in any direction
• Keep questions developmentally appropriate
• Avoid repetitive suggestions
• Avoid leading or coercive questions
• Begin with open-ended questions
• Document questions and responses

Attempt to corroborate

• Try to collect whatever material evidence there is that corroborates child’s testimony

MacFarlane and Feldmeth (1988) made an excellent film with an accompanying brochure after the McMartin preschool case ended. Their fine work added to the information on child sexual abuse interviews with regard to protection of the psychotherapist, the child, and the prosecution case in general. They make the following suggestions, some of which repeat the suggestions of Reed (1996). MacFarlane and Feldmeth (1988) suggest:

Avoid (due to attacks in court)

• Hypnosis
• Age regression
• Use of family photographs
• Anatomically correct dolls
• Dream interpretation
• Guided imagery

In the interview process with child

• Avoid assumptions
• “This child has the profile of a child who has been sexually abused because he has suddenly begun soiling himself…”
• “This child has had three urinary infections so she must be experiencing sexual abuse…”
• Get second and third opinions
• Call another clinician
• Get expert consultations
• Call child abuse hotline for a consultation
• Call an expert clinician
• Call the ethics committee
• Call your insurance company
• Do not make suggestions
• “Why don’t you tell your teacher tomorrow?”
• “Why didn’t you run away?”
• Stay completely neutral
• “That is the worst story of abuse I have ever heard!”
• “I feel so sorry for you!”
• “I am going to call your mother right now!”
• Consider the influences of other, outside events
• Have the parents recently gotten a divorce?
• Is there family strife?
• Has a natural disaster occurred recently?
• What else is going on in the child’s life?
• Consider everything else
• Document everything, especially quotes from family members and the child him or herself
• Consider videotaping or audiotaping sessions
• Do not ask leading questions
• “Did he touch you here or there?”
• “When did he touch you?”
• “What did you do when she touched you?”
• All of these questions imply the child was touched and require a positive answer
• Do not ask “tag” questions
• “You feel bad, don’t you?”
• “Someone touched you, didn’t she?”
• The tag portion (in bold) requires a positive or negative answer such that the child is forced to respond
• Do not coerce the child
• In some interviews, the psychotherapist doing the interview was attacked for “coercing” the child by giving a lollipop, a hot chocolate, or a kind word
• Also, telling a child something like “your mommy will be happy if you tell me what happened…” is a coercive statement
• Avoid any trace of contamination
• In the McMartin case, since this type of interview was new to everyone involved, the families were so upset, they met together to discuss the abuse of their children. Later, the defense attorneys claimed the “evidence” and testimony of the children had been contaminated because the children and families had “shared” information and it was not fresh for each person.
• Do not reinforce the child in any possible manner
• This is similar to coercion of the child. Do not encourage the child to tell you something unless or until he or she is ready, or unless there is actually something to tell.

Preparing to Testify

Before one testifies, it is important to distinguish between the two different possible roles a psychotherapist may be asked to play – a fact/percipient witness or an expert witness (Harmell, 1998). A fact witness is not much different from a person who is called upon to give testimony in a case where he or she saw two cars hit each other and is called upon to give the facts of the collision. Except here, the fact/percipient witness who is a psychotherapist simply reports upon the facts as he or she observed them within the psychotherapy relationship. In this case, the psychotherapist does not give a professional opinion (Harmell, 1998; Stromberg et al., 1988).

The other role an LCSW may be asked to perform is that of an expert witness. In this role, the psychotherapist can do many tasks, from advising the litigant and her attorney about a particular topic, to preparing them for the case at hand, to testifying in court as an expert on a particular topic or several topics. Experts are not familiar with the people in the case prior to the legal issues for which they are hired to consult, otherwise they would not ethically be an expert witness on this particular case. Expert witnesses are never paid based upon whether the attorney and client win the case. Expert witnesses are paid on an hourly basis for their professional work only (Harmell, 1998; Stromberg et al., 1988).

FACT / PERCIPIENT WITNESS	EXPERT WITNESS
Get their professional hourly rate	Hired, generally by the attorney, for the expertise of the psychotherapist
Discuss only the facts of the case as they understand them	Discuss opinions based upon expertise, knowledge, training
Some professionals negotiate a separate fee due to having to cancel other patients in order to attend court and travel time	Negotiate professional fees based upon standard of care
Consult	Receive fees based on hourly rate, not outcome of case

CHILD ABUSE LAWS

The Child Abuse Prevention and Treatment Act was passed as a federal requirement for all states to have mandatory reporting laws and programs that look at the problem of child abuse and neglect within their state. Each state defines child abuse and neglect in its own way with the 1974 definition in mind.

Definition of Child Abuse

Child abuse includes both acts and omissions. Competent interventions must consider evaluating multiple categories of abuse. The act of inflicting injury, or the failure to act so that injury results – rather than the degree of injury – are the bases for making the decision to intervene. A parent or caretaker may begin by inflicting minor injuries, and then may increasingly cause more serious harm over a period of time. Therefore, detecting the initial small injuries, and intervening with preventive action may save a child from future permanent injury or death (Child Abuse Handbook, DOJ, p. 1).

Child abuse happens anywhere, at all socioeconomic levels, and within any ethnic, cultural, and occupational groups. Generally, the abuser is known to the child. The abuser is often a parent, neighbor, caretaker, teacher, relative, or other trusted person.

Not Automatically Reportable

There are certain activities that may occur with children that are not automatically considered child abuse. These activities include:

1. Children fighting with each other
2. Adults using reasonable force with children
3. The pregnancy of a minor
4. Maternal substance abuse
5. A positive toxicology report
6. Adults abused as children and disclosing it as adults

When to Report

In California, a mandated reporter must report child abuse when he or she "reasonably suspects" it has occurred. The definition of “reasonable suspicion” is “when it is objectively reasonable for a person in a like position to suspect child abuse,” according to California Penal Code.

When laws are changed, especially in the area of child abuse reporting, it takes time for the interpretations to become known. The experts review the changes and make comments. Primarily, the clinicians, using the new laws to make good faith reports, find the subjects of the report objecting to the information in the report. Unfortunately, that is generally how clinicians find out how the changes in law will be interpreted. For example, think of how the changes in Tarasoff came about in Hedlund, the Veteran’s Administration, and the latest Ewing v Goldstein (see Section B for a review of Tarasoff). These were all situations where a new interpretation of past law became case law. ” Remember, you are responsible for keeping up-to-date with your state laws, which can be found at http://nccanch.acf.hhs.gov/general/legal/statutes/search/

This may be a good time to learn your state laws.

How to report:

• As an example, California requires reports of known or suspected instances of child abuse as soon as practically possible by telephone, and prepare and send a written report thereof within 36 hours of receiving the information concerning the incident.

Immunity from liability to reporting person:

• Again, in California, mandated reporters are not civilly or criminally liable for any required report

Cultural Differences and Religious Freedom

Cultural differences vary widely throughout the world. For example, recently a Guatemalan man burned his five-year-old son’s hand over a flame for stealing a pack of gum from a drug store (Los Angeles Times, May 1, 2002). When the case came before Superior Court Judge James O. Perez, his “punishment” was extremely controversial. Upon giving the father a mere $100 fine, the Judge commented, “We find ourselves in the crosscurrent of customs and habits.” The prosecutor said angrily that the father deserved prison. Whatever your opinion, the Department of Justice Child Abuse Handbook dictates, when it comes to punishment, no matter what the culture of the family, “when a professional believes that a practice falls within the definitions of child abuse, it must be reported” (pp. 21-22).

Parents have the right to worship in any way they see fit. If their form of worship eliminates the use of medication or medical care, and if the family can document these specific practices, and they can be verified, then if the parents refuse medical care, it is not reportable as neglect. However, if you are ever unsure, remember to consult.

SOCIAL WORK ETHICS CODES THAT APPLY TO DISCRIMINATION

NASW Code of Ethics

Standard 1.05 – Cultural Competence and Social Diversity (a-c)

(a) SWs understand culture and its function in working with patients in society and recognizing strengths in all cultures.

(b) SWs must demonstrate competence in provision of services to different cultures with which they work.

(c) SWs must gain education and seek to understand the nature of social diversity.

Standard 4.02 – Discrimination

SWs do not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of color, religion, race, sexual orientation, or immigration status, national orientation, etc.

CSWA Code of Ethics

Standard VI - CSW Responsibilities to the Community

(a) CSWs do not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of color, religion, race, sexual orientation, national orientation, etc. (NASW 4.02 and CSWA VI.a are nearly identical)

Consultation

When you are uncertain whether to report child abuse, the child abuse hotlines provide a consultation service. When you call the hotline telephone number, merely push the number the voicemail system tells you will allow for a consultation rather than a report. Be certain to get the vital information from the consultation:

1. Name of consultant
2. Date of consultation
3. Exact quote from consultant

Note in the “Frequently Asked Questions (FAQ)” section above, I have used quotes and the name of the DCFS consultant who gave the information during the consultation (see FAQ numbers 3 and 5 for examples).

Other appropriate consultants are experts in child abuse, attorneys, ethics committees, and your insurance company attorneys who are required to give you consultation at no charge.

Discipline versus Abuse

DISCIPLINE	ABUSE
Appropriately Controls behavior Appropriately changes behavior Creates a positive self-image Gets internalized as: - moral development - physical development - intellectual development	Satisfies parental needs for control Expresses negative feelings of parents Temporary behavior changes Encourages acting out behavior Creates a negative self-image

In terms of making a decision whether or not to report the behavior, Kemp (1998) posits that discipline be related to the original offense or behavior the parents wish to change or eliminate in the child. It should be administered calmly and appropriately, be fair and brief, and free from physical violence.

Which Health Practitioners are Mandated Reporters?

The Child Abuse Handbook (Department of Justice, p. 95) defines mandated reporters with regard to health practitioners as:

Penal Code 11165.8 Health Practitioner

(a) A physician and surgeon; psychiatrist; psychologist; dentist; resident; intern; podiatrist; chiropractor; licensed nurse; dental hygienist; optometrist; marriage, family and child counselor; clinical social worker.

(b) Any emergency medical technician, paramedic

(c) A psychological assistant

(d) A marriage, family and child counselor trainee

(e) An unlicensed marriage, family and child counselor intern

Partner Abuse / Domestic Violence and Child Abuse

California Family Code uses the terminology “domestic violence” despite the more contemporary terminology “partner abuse” being used today. This Code defines domestic violence as:

Intentionally or recklessly causing bodily injury, or sexual assault. Placing in reasonable apprehension of serious imminent bodily injury.

Some examples may include:

• Disturbing the peace of another person
• Destroying personal property of another
• Physical assault of any kind
• Hitting, slapping, shoving, throwing things, kicking, spitting, etc.
• Threatening another person

Report domestic violence

In California, mandated reporters must report Emotional Maltreatment, if the domestic violence/partner abuse occurs in front of the child, or causes family problems under any of the other elements of child abuse.

After a Report is Made

After a report is made, the agency must decide how to respond next. The seriousness of the abuse and the report determines the reaction by the agency. If the child is still in danger, there is much more likely to be an immediate or emergency response. If the child is in serious danger, law enforcement will respond immediately, because what is occurring is clearly a criminal matter. With less serious situations where there generally are no physical injuries, child welfare without the presence of law enforcement will respond.

The state Child Welfare agency and law enforcement generally coordinate their work, but they investigate separately in most cases. Once again, law enforcement investigates the criminal aspects involved, while the child welfare agency is concerned with the child, family, and reunification issues.

The State Child Welfare Agency versus LAW ENFORCEMENT

SCWA	LAW ENFORCEMENT
Protection of child Interviews with child and others Provide services - Counseling - Medical care - Emergency shelter - Family unification	Interviews with child and others Make arrests when required Refer to district attorney for criminal prosecution Gather evidence in criminal case - Medical records - School records - Former police arrests

What Happens to Child

Under California law, for example, most abused children remain in the home unless the abuse is so egregious that it becomes impossible for the child to remain safely in the home. The primary goal of the Department of Child and Family Services (California’s Child Welfare Agency) and law enforcement is to ensure that the child be kept safely in the home. The social worker may arrange temporary foster care for forty-eight hours, after which the California Superior Court will hold a hearing to determine if continued removal is necessary to ensure safety for the child.

The juvenile court system may decide to place the child with another family member or foster care group home. However, the juvenile court system requires reunification efforts to be reviewed every six months.

Remember that reporting laws vary by state, so be sure to keep current with the laws that apply to you. Use the following link to review your state’s laws:

http://nccanch.acf.hhs.gov/general/legal/statutes/search/

Reporting Sexual Abuse

Sexual abuse reporting laws also vary by state. For example, sexual abuse in California is defined as “… a sexual assault on, or the sexual exploitation of a minor” (DOJ, 2000, p. 14). As in most states, this includes “rape, rape in concert, incest, sodomy, oral copulation, penetration of genital or anal opening by a foreign object, and child molestation.” It also includes lewd and lascivious conduct with minors. Mary Jane Large, JD, reports that courts define lewd and lascivious as “touching of the child by the perpetrator, for purpose of arousing, appealing to, or gratifying the lust, passions or sexual desires of perpetrator or child” (Large, 1999).

Confidentiality and Minors

Under California laws, only the adult in authority can give consent for treatment in the case of a minor. That adult can be a parent, or a “guardian” which has a somewhat uncertain definition. According to Black’s Law Dictionary (p. 282):

One who has the legal authority and duty to care for another’s person or property, especially because of the other’s incapacity or disability; a guardian may be appointed either for all purposes or for specific purposes.

Please note that the term “parent” is never mentioned here.

Review of Terms Related to Confidentiality and Privilege

Confidentiality is an ethical term that denotes a contract between the patient and the psychotherapist where the psychotherapist promises to keep all utterances confidential communications, except those required disclosures by law. It is a term seen in ethics codes and standard of care documents.

Privilege is a legal term which pertains to who may consent to release of confidential patient material (records or testimony) in legal proceedings such as subpoenas for records or testimony.

Laws Related to Privilege with Minors - Holder of Privilege

a. Patient holds privilege – This refers to the primary patient
Notice “parent” is not mentioned anywhere here (This will be discussed in the section on minors)

b. Guardian holds privilege – One who has legal authority for incapacitated person (p. 282).

The authors of this bill may have wished the holder of privilege to be ambiguous about minors and the holder of privilege in that they wanted the holder of the privilege to be decided on a case-by-case basis depending upon the facts of each case. Otherwise, the authors of the bill wanted the “patient” in Section (a) to refer to any patient including a minor patient. At present, we do not know what the authors had in mind for patients who were minors.

In any event, psychotherapists who work with children and families, especially adolescents and teens, know how to negotiate with parents in order to decide in advance how to appropriately work in the best interests of the minor patient with issues of confidentiality. This is certainly an “art” not a science!

Remember that Federal HIPAA law supersedes State law UNLESS state law gives the patient more protection.

For a concise explanation of HIPAA’s regulations for privacy with minors, click on the following link:

http://privacy.med.miami.edu/glossary/xd_minors.htm

The Privilege Controversy in California

Daniel v Daniel (1990) 220 Cal.App.3^rd 814

In a little known case of a son against his father, a California judge made a decision that became case law with regard to privilege in the case of a minor, when the minor has been abused by his father and refuses to release his own psychotherapy records.

During a bitter divorce proceeding, an eight-year-old boy disclosed to his psychologist, who was also the family therapist, that his father had abused him sexually; he then told the therapist not to disclose any of this private information in court. After reporting the abuse to the Department of Child and Family Services, the psychologist claimed the privilege for young Daniel, refusing to testify as requested by her young patient.

The judge, aware of this situation, appointed an independent evaluator to evaluate young Daniel for possible abuse. The independent evaluator concluded abuse had, indeed, occurred to young Daniel, and reported this to the judge. The father objected to all the therapist’s reports, and demanded, through his attorney, all of young Daniel’s therapy records.

Daniel’s father was given the independent evaluator’s reports, as they were part of the court record, but the judge appointed young Daniel his own legal representation, who, under Family Code 2151 a & c has “the right to assert or waive any privilege on behalf of the child.”

The judge eventually upheld young Daniel’s privilege with the original psychologist.

The attorney at the time for the California Association of Marriage and Family Therapists (CAMFT), wrote an article that interpreted Daniel very narrowly with regard to privilege and minors at the time (see The California Therapist, March-April, 2001), and which has been largely disputed by other experts:

If your patient is a minor child, he or she holds the privilege. A minor’s parents do not hold the privilege for the minor… the only time a parent could possibly hold the privilege is if the court… appoints the parent as a guardian ad litem. If your patient is a minor…be careful… the parent can only hold the privilege if appointed as guardian ad litem. (Pelchat, p. 15)

The CAMFT article took a very absolute position, and began a public letter-writing discussion with a psychologist and his attorney who are both well-respected experts in ethics and legal issues of this nature. If you are interested in this lively exchange, see The California Therapist, March-April, 2001, and The California Therapist, September-October, 2001.

The judge in Daniel quoted Evidence Code 1013, noting, “Statutes do not specifically mention who holds the privilege when the patient is a minor. Case law does suggest a minor child is entitled to privacy granted by the privilege.”

Conclusion

As always, when unsure, consult with the experts who know about Daniel. Case law only refers to situations that are extremely similar to the original case. Unless the case in point has similar facts, issues, or situations, then the original case law is not applicable. The Daniel case can only be applied to situations where the facts include a child who does not wish to share facts of abuse, possibly with a father or family member. A criticism of the CAMFT article’s interpretation of Daniel was that it absolutely applied Daniel case law to all cases of minors and confidentiality without consideration of the facts of the individual case. Many experts believed this was too broad an interpretation of Daniel. In other words, the article professed the minor – no matter what age, no matter what situation – holds his or her own privilege. According to CAMFT, the parent never holds the privilege unless appointed as guardian ad litem by a judge. As of this writing, experts consulted hold varying opinions about minors and privilege with regard to Daniel. Consult on a case-by-case basis.

Since confidentiality can be negotiated with the family and the minor, it is important to discuss this in advance with all involved. Privilege is the legal aspect of the confidential communications between the psychotherapist and the patient; thus, both issues need to be addressed within the context of the informed consent issues.

SOCIAL WORK CODES THAT APPLY TO CHILD ABUSE

NASW Code of Ethics

Standard 1.07(a-r) – Privacy and Confidentiality

Since this is such a long code with eighteen sections, it is incumbent upon each individual social worker to take the time to review this standard him or herself. However, a brief summary is given below.

• SWs do not solicit information from clients unless they wish to disclose such information.
• SWs need valid consent to disclose any private patient information.
• SWs may breach in cases of danger to patient, others, etc.
• SWs should try to give informed consent regarding disclosures.
• SWs should discuss limitations to confidentiality prior to treatment.
• SWs are cognizant of the difficulties of confidentiality with multi-client situations (group, couple, and family).
• SWs inform patients about disclosures to referring employers.
• SWs do not disclose information to third party payers without permission.
• SWs do not discuss confidential information in public places.
• SWs protect confidential information in legal procedures.
• SWs protect confidential information in media settings.
• SWs are careful using technology for record storage.
• SWs are careful using technology for record transmittal.
• SWs dispose of records properly.
• SWs take care to protect patient’s records in case of the therapist’s termination, incapacitation, or death.
• SWs protect patient information in teaching or training lectures.
• SWs do not disclose identifying patient information when receiving consultation.
• SWs protect confidences of deceased patients.

CSWA Code of Ethics

Standard III (b) - Confidentiality

(b) Mandatory reporting obligations may include, but are not limited to; the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); and, any duty to report the misconduct or impairment of another professional. (CSWA, 2006, p. 8)

REFERENCES

Department of Justice (2002). Child Prevention Handbook… and Intervention Guide. www.safestate.org (download Child Prevention Handbook)

Gardner, B. (Ed.) (1996). Black's Law Dictionary. St. Paul, MN: West Publishing Co.

Harmell, P.H. (1998, May-June). But I can't testify in court! I'm not a forensic psychologist! The Los Angeles Psychologist.

Kemp, A. (1998). Abuse in the Family. Pacific Grove, CA: Brooks/Cole

MacFarlane, K. & Feldmeth, J. (1988). The clinical interview, response, child sexual abuse. NY: Guilford

Pelchat, Z. (May/June, 2001). The standard of care: Definitions and examples. The California Therapist. San Diego: CAMFT.

Reed, L. (1996). Findings from research on children's suggestibility and implications for conducting child interviews. Child Maltreatment, 1, 105-120.

Warren, A., Woodall, C., Hunt, J., & Perry, N. (1996). It sounds good in theory, but… do investigative interviewers follow guidelines based on memory research? Child Maltreatment, 1, 231-245.

Zigler, E. & Hall, N. (1989). Physical abuse of children in America: Past, present, and future. In D. Cicchetti and V. Carlson (Eds), Child maltreatment: Theory and research on the causes and consequences of child abuse and neglect. NY: Cambridge University Press.

LEARNING OBJECTIVES FOR SECTION G

• Describe federal resources for elders
• Cite important statistics about elder abuse
• Recognize and properly report elder and dependent abuse

FEDERAL RESOURCES

Federal definitions of elder abuse appeared for the first time in the 1987 Amendments to the Older Americans Act. These definitions were guidelines for identifying problems, not for enforcing laws. Currently, state laws define enforcement of elder abuse and they vary considerably from state to state.

Generally, domestic elder abuse and neglect refers to several forms of maltreatment of an older person by someone who has a special relationship with the older person such as a spouse, sibling, caregiver, or in-home worker. Institutional abuse and neglect refers to any of the same abuses that occur in residential facilities for older persons such as nursing homes, foster homes, group homes, and board and care facilities.

In a major 1998 National Elder Abuse Incidence Study, funded in part by the Administration on Aging, the following was found:

• 551,011 persons, aged 60 and over, experienced abuse, neglect, and/or self-neglect in a one-year period
• Almost four times as many new incidents of abuse, neglect, and/or self-neglect were not reported as those that were reported to and substantiated by adult protective services agencies
• Persons aged 80 years and older suffered abuse and neglect two to three times greater than expected in their age group
• Among known perpetrators of abuse and neglect, the perpetrator was a family member in 90% of cases. Two-thirds of the perpetrators were adult children or spouses.

National Center on Elder Abuse

ELDER JUSTICE ACT

1. Elevates elder justice issues to national attention:
• Grant-making
• Public-private and a coordinating Council to coordinate activities of all relevant federal agencies, states, communities and private and not-for-profit entities
• A consistent funding stream and national coordination for Adult Protective Services (APS)
2. Improving quality, quantity, and accessibility of information – Elder justice resource center and library for consumers, advocates, researchers, policy makers, providers, clinicians, regulators and law enforcement. A national data repository for data collection on abuse.
3. Increasing knowledge & supporting promising projects – Given the paucity of research, centers of excellence will enhance research, clinical practice, training, and dissemination of information relating to elder justice. Priorities include a national incidence and prevalence study, jump-starting intervention research, developing community strategies to make elders safer, and enhancing multidisciplinary efforts.
4. Developing forensic capacity – There is scant data to assist in the detection of elder abuse, neglect, and exploitation of elders. Creating new forensic expertise similar to child abuse to promote detection and increase expertise by training professionals in both forensic pathology and geriatrics.
5. Victim assistance, “safe havens,” and support for at-risk elders – Elder victims’ needs, which are rarely addressed, will be better met by supporting creation of “safe havens” for seniors who are not safe where they live, and the development of programs focusing on the special needs of at-risk elders and older victims.
6. Increasing prosecution – Technical, investigative, coordination, and victim assistance resources will be provided to law enforcement to support elder justice cases. Support for community policing efforts to protect at-risk elders.
7. Training – Training to combat elder abuse, neglect, and exploitation is supported both within individual disciplines and in multidisciplinary settings (such as public health, social service, law enforcement).
8. Special programs to support underserved populations including rural, minority, and Native American seniors.
9. Model state laws and practices – A study will review state practices and laws relating to elder justice.
10. Increasing security, collaboration, and consumer information in long-term care
• Improving prompt reporting of crimes in long-term care settings
• Criminal background checks for long-term care workers
• Enhancing long-term care staffing
• Information about long-term care for consumers through a long-term care consumer clearinghouse
• Promoting accountability through a new federal law to prosecute abuse and neglect in nursing homes
11. Evaluations & accountability – Provisions to determine “what works” and assure funds are properly spent.

TESTIMONY BEFORE US SENATE COMMITTEE ON FINANCE

CATHERINE HAWES, Ph.D., Professor, Texas A&M June 18, 2002

“I saw a nurse hit and yell at the lady across the hall because the nurse told the lady she didn’t have all day to wait on her. The lady made some remark. The nurse hit the lady and said ‘shut up.’” Georgia Nursing Home Resident (Atlanta, 2000)

“Have I seen abuse? No, not directly. But I’ve come in and found my mom battered and bruised. I mean, l saw her whole face was bruised and swollen, the backs of her hands and arms were bruised, as if she tried to protect herself.” Daughter of a Texas Resident, 2000

“Oh, yeah. I’ve seen abuse. Things like rough handling, pinching, pulling too hard on a resident to make them do what you want. Slapping…that, too. People get so tired, working mandatory overtime, short-staffed. It’s not an excuse, but it makes it so hard for them to respond right.” Nurse from Carolina, 2001

“They throw me like a sack of feed… and that leaves marks on my breasts.” Georgia Nursing Home Resident, 2000

“My roommate – they throw him in the bed. They handle him any kind of way. He can’t take up for himself.” Georgia Nursing Home Resident, 2000

Question 1

According the research quoted here, who are the most likely candidates to abuse elders?

1. Burglars
2. Their spouses and adult children
3. Nursing care givers

Question 2

If the Federal ELDER JUSTICE ACT passes, what will be one of the most important and helpful elements?

1. Elders will get more money
2. Elders will get free legal representation
3. Elder abuse will get more national attention

If you answered (b) their spouses and adult children to Question 1, you are correct. For Question 2, the answer is (c) more national attention, which hopefully will help put an end to this despicable practice.

VARIOUS FORMS OF ELDER ABUSE

The following is an example of California Elder Abuse reporting law. Each Social Worker is mandated to know the elder abuse reporting laws in his or her state.

Physical Elder Abuse – MANDATED REPORT under California law

• Inexplicable weight loss
• Wounds, cuts, abrasions, burns
• Black eyes, laboratory findings of medication overdose
• Bruises, welts, swelling
• Broken bones, broken eyeglasses
• Sudden, inexplicable weight loss
• Unwarranted restraints
• Specific complaints by elder
• Sprains, various stages of healing
• Any sexual abuse
• Bloody sheets, underclothing
• Bruised genital area, breasts

Mental Elder Abuse is PERMITTED to be reported, NOT MANDATED under California law

• Fear, agitation, hesitancy
• Depression, withdrawal
• Sudden behavioral changes
• Unusual behavior patterns
• Unwillingness to communicate
• Disorientation, confusion
• Unjustified isolation
• Rude, humiliating, derogatory comments made to elder
• Specific complaints by elder
• Any threats, intimidation, or harassment

Neglect of Elder – MANDATED REPORT under California law

• Unsanitary environment
• Malnutrition, dehydration
• Smells of urine and/or feces
• Unkempt appearance
• Poor personal hygiene
• Untreated medical condition
• Specific complaints by elder
• Abandonment

Exploitation or Financial Abuse of Elder – MANDATED REPORT under California law

• Sudden, unjustified selling of property
• Missing/stolen money or property
• Radical changes in handling personal/financial affairs
• Specific complaints by elder
• Sudden changes in bank account
• Additions or inclusion of names to bank signatures
• Large or small withdrawals from bank account
• ATM withdrawals
• Sudden appearance of previously uninvolved relatives
• Unexplained transfer of funds
• Forged signatures

Self-Neglect by Elder – MANDATED REPORT under California law

The behavior of an elderly person that threatens his/her own health or safety. Self-neglect generally manifests itself in an older person as a refusal or failure to provide himself/herself with adequate food, water, clothing, safety, personal hygiene, medication, and safety precautions.

• Dehydration, malnutrition, untreated or improperly attended medical conditions, and poor personal hygiene
• Hazardous or unsafe living conditions/arrangements (e.g. improper wiring, no plumbing, heat, running water)
• Unsanitary or unclean living quarters
• Inappropriate or inadequate clothing
• Lack of medical aids
• Grossly inadequate housing or homelessness

SIGNS OF NURSING HOME ABUSE – MANDATED REPORT under California law

1. Unexplained bruises, cuts, burns, etc. in various stages of healing
2. Bedsores or frozen joints
3. Unexplained venereal disease or genital infections; vaginal or anal bleeding; torn, stained, or bloody underclothing
4. Sudden changes in behavior
5. Staff refusing to allow visitors to see residents or delays in allowing visitors to see residents
6. Staff not allowing residents to be alone with visitor
7. Resident being kept in an overmedicated state
8. Loss of resident’s possessions
9. Sudden large withdrawals from bank accounts or changes in banking practices
10. Abrupt changes in will or other financial documents

Please note that states also have elder abuse reporting laws. As you may recall from the introduction to this course, state laws generally supersede federal laws when they provide greater confidentiality protection to the client. At this time we recommend that you become familiar with your state’s elder abuse reporting laws by searching on the Internet using these keywords: ‘elder abuse reporting laws’ & Your State.

The following discussion of the various types of elder abuse forms the basis of mandated reporting laws in some states, such as California (Pines, 2004; Erikson & Conidaris, 2001).

1. Financial –Taking, secreting, appropriating, or retaining real or personal property of an elder to a wrongful use or with intent to defraud or both
2. Isolation – Acts intentionally committed to prevent an elder from receiving mail or telephone calls or telling callers or visitors the elder is not present. False imprisonment. Physical restraint.
3. Mental Suffering – Fear, agitation, confusion, severe depression, or other forms of serious emotional distress; intimidation, threats, harassment, deceptive acts, misleading statements meant to confuse, frighten or cause severe depression or serious emotional distress.
4. Neglect – Negligent failure of any person having the care or custody of the elder to exercise that degree of care that a reasonable person in a like position would exercise (e.g., personal hygiene, food, clothing, exercise, health and safety hazards, malnutrition, or dehydration).
5. Physical Abuse – Assault, battery, bodily injury, unreasonable restraint, deprivation of food or water, sexual assault, sexual battery, rape, physical or chemical restraint.

Who Are Mandated Reporters – Under California law

• Any person who has assumed full or intermittent responsibility for care of an elder whether or not receiving compensation
• Any mandated reporter who in his or her professional capacity, or within the scope of his or her employment (see WIC 15610.37 Health Practitioner” definition below):
• Has observed
• Has knowledge
• Or is told by an elder or abuser
• Or reasonably suspects abuse

“Health Practitioner” means a physician and surgeon, psychiatrist, psychologist, social worker, marriage and family therapist . . .

How to Report – Under California law

Click here to find your state elder abuse hotline:

State Elder Abuse Hotlines

Or if you are reporting from out of state you can:

• Call the National toll-free Elder Care Locator number 800-677-1116

AND

• If required send written report to the agency where the hotline recipient of your call tells you to send the report) (check your state for exact requirements on when and where to send written report)..Typically, reports are sent to the following:
  1. State Dept of Health Service for any case of known or suspected abuse in a long-term health care facility
  2. State Dept of Social Service for any case of known or suspected abuse in residential care facility for elderly
  3. State Dept of Health Service and the State Department of Aging for any case of abuse in adult day health care center
  4. Bureau of Medicare Fraud and Elder Abuse any case of known or suspected criminal activity
  5. If the abuse has occurred any place other than one described above, report shall be made to the adult protective services agency or the local law enforcement agency.

FAILURE TO MAKE A REPORT – Under California law

Violation of this section may be a misdemeanor in your state. Be familiar with your state laws.

NO PENALTY FOR GOOD FAITH REPORT – Under California law

As with child abuse, there is no penalty for a good faith report of elder abuse when the psychotherapist has good reason to believe there has been abuse. It is always a good idea to consult with another clinician or expert, and to document in the patient’s file whatever is said in the consult.

Question 3

Which is the only type of abuse that is not a mandated to report type of elder abuse, but is a permitted to report type of elder abuse?

1. sexual abuse
2. mental abuse
3. financial abuse

Question 4

Psychotherapists who work with children are not mandated elder abuse reporters.

1. True
2. False

Question 3 asks if you must report sexual, mental, and financial abuse as a mandate. All are mandated report situations except (b) mental abuse. For Question 4, anyone who, in his or her capacity as a psychotherapist, hears from an elder he or she has been abused, is a mandated reporter. If an elder brings a child for treatment, and when the elder comes into the room, you notice he has a black eye, you must evaluate the situation. In addition, is the child at risk? If the elder lives with the family, you must consider the child at risk for child abuse as well.

WHY ELDER ABUSE OCCURS

Caregiver Stress

It is not an easy task caring for the elderly, especially when they are mentally infirm, physically impaired, and the caregiver is underpaid and overworked. Under such circumstances, the frustration and stress can be enormous and can lead to short tempers, long nights, and angry atmospheres.

Infirm Elder

There has been some research that has shown elders who are in poor health are more likely to be abused than those in good health are because they are less able to care for themselves. Additionally, the caregiver has heightened responsibilities as a result of the elder’s weakened state.

Turn the Tables

Sometimes a spouse that has been abused will “turn the tables” on the spouse who has been abusing him or her when the original abuser becomes ill or infirm. He or she may feel they can finally get back at the original abuser for years of abuse when the original abuser is unable to fight back.

Financial Burden

In some instances, financial burdens of paying for health care for an aging parent, or living in overcrowded quarters, can lead to stress and frustration and can trigger elder abuse.

Cycle of Violence

Families that are used to violence as a “solution” or as a learned behavior often transmit this behavior from one generation to another. Abusive behavior becomes the normal response to tension or conflict with few other methods of responding.

Personal Problems of the Abuser

Research has found that abusers of the elderly often have more personal problems than non-abusers (Anetzberger, 2000). Adult children who abuse their parents sometimes suffer from mental and emotional disorders such as alcoholism, drug addiction, and financial difficulties. Sometimes these adult children are financially dependent upon their parents, which adds further stress to the relationship.

Who are the Typical Abusers

As mentioned earlier, two-thirds of elder abuse perpetrators are known to the victims and in fact are family members, such as adult children or spouses, serving a care-giving role.

REFERENCES

Anetzberger, G. J. (2000). Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America. Washington: DC: National Academies Press.

Bornat, J. (1994). Reminiscence Reviewed. San Francisco: Taylor & Francis.

Catherine Hawes, Ph.D. Department of Health Policy & Management, School of Rural & Public Health Texas A&M University System Health Science Center

Erikson, J., & Conidaris, M. (2001). California Laws for Psychotherapists. Los Angeles: Legal Books Dist.

Fisher, C. (2003). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.

Moon, A., & Williams, O. (1993). Perceptions of elder abuse & help-seeking patterns among African-American, Caucasian American, Korean-American elderly women. The Gerontologist, 33, 386-395.

Pines, M. (2004). California Laws on Counseling & Psychotherapy. Los Angeles: Legal Books Distributing.

LEARNING OBJECTIVES FOR SECTION H

• Discuss issues involved in the proper termination of patients
• Know how to avoid patient abandonment
• Discuss ways to terminate a patient who is threatening or stalking the therapist

TERMINATING THERAPY, PATIENT ABANDONMENT, PROPER REFERRALS

Sometimes continued therapy may not benefit the patient, or worse, may be harmful to the patient. The standard of care, demonstrated by CSWA Standard 2A (see below), requires psychotherapists to terminate therapy if it might injure the patient, or if continued therapy fails to benefit the patient. If services are no longer needed, sessions must be terminated in order to avoid risk to the patient (Fisher, 2003). If a psychotherapist is unsure of these issues, he or she must consult with an expert and document the consultation in the patient’s file.

Thus, psychotherapists or interns who continue to see patients based on their own financial gain or a need to accrue hours for licensure are violating this standard. Indeed, if the patient is unlikely to benefit from the treatment, the psychotherapist is mandated to end the treatment (Fisher, 2003).

CSWA Standard 2a directs CSWs to provide some sort of appropriate pre-termination counseling prior to ending a therapeutic relationship. This includes:

• Giving enough advance notice of termination
• Giving the patient enough time to ask questions about the termination
• Discussing in advance the reasons for termination
• Encouraging the patient to ask questions and clear up any misunderstandings prior to the end of treatment
• Providing enough referrals to the patient such that the client will be able to find alternative care (Fisher, 2003)

Patient Abandonment

When is a “duty of care” established? In Section A, duty of care was defined as an established relationship between the client/patient and the psychotherapist (If you wish a review of the complete description of duty of care, see below.)

Duty of Care. A Duty of Care arises when there has been an agreement between the psychotherapist 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, after two or three sessions, a patient begins to develop an assumption he or she has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for consideration of longer-term therapy? Is the work being done merely an evaluation using assessment instruments such as a test battery? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief six-week behavior model of treatment? If the parties have not decided whether they wish to work together by the third session or so, and a civil suit should occur, the court may decide for them that a “duty of care” has 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.

Since a new or naïve client who has never sought psychotherapy may not understand when the duty of care begins, it is mandatory to discuss this thoroughly with the person at the outset of treatment (Van Susteren, 2001). Van Susteren (2001) reviewed a number of interesting legal cases in which the psychotherapist was charged in court with patient abandonment. Two in particular stand out:

Brandt v Grubin (1974) – New Jersey

A psychiatrist was called in as a consultant to do a one-time evaluation of his opinion for future treatment and current medication management. He recommended long-term psychotherapy and medication with a psychiatrist other than himself. The patient promptly committed suicide. The patient’s family just as promptly sued the psychiatrist for patient abandonment in a malpractice suit. The Appellate Court found that the psychiatrist “completed his task of the patient evaluation and recommendation and had no obligation to expand or deepen his involvement.” Thus, the psychiatrist was not liable for patient abandonment.

Osheroff v Chestnut Lodge (1985) – Maryland

Dr. Osheroff, a physician, underwent months of ineffective psychodynamic treatment at Chestnut Lodge for major depression. He was eventually given antidepressant medication for his major depression, which helped him improve rapidly. He quickly resumed his normal life, and he found an attorney and sued Chestnut Lodge and the treating staff for patient abandonment and malpractice. Chestnut Lodge offered a settlement out of court that was accepted by Dr. Osheroff.

In this Osheroff case, there was a duty to terminate when the treatment failed to help improve the patient. “Continuing to treat a patient long after it is clear the chosen treatment is not working can be seen as the flip side to abandonment. A psychiatrist does have a legal (and ethical) duty not to continue ineffective treatment… the court has described the duty to terminate ineffective or dangerous treatment” (Van Susteren, 2001, p. 12).

Psychotherapists must terminate when they recognize that the patient no longer needs the service, or is no longer benefiting, or is even being harmed by the treatment. This requires the psychotherapist review his or her notes, to consult on a regular basis, to remain aware of the progress of treatment, and to stay abreast of new methods being used to treat the patient’s condition.

Claims of patient abandonment sometimes arise if psychotherapists do not provide appropriate coverage during off times such as weekends, nights, and vacations. Psychotherapists must be reasonably accessible to patients whom they know are prone to “emergencies” (Tarasoff, danger to self or other) via pager or checking one’s phone message system (voicemail or answering service) (Welfel, 2002).

Although the patient is free to terminate whenever he or she wishes, the psychotherapist does not have the same freedom. The psychotherapist has a duty to provide continuity of care unless there is some reasonable reason not to do so (e.g., the psychotherapist becomes ill or has an emergency). Normally, the standard of care in cases of psychotherapist emergency is to place another professional on call in one’s place until the psychotherapist can return to work (Stromberg et al., 1988).

Returning Pages and Telephone Calls

It is not mandatory to use a pager or beeper system, but it is necessary to check in with one’s answering service or one’s answering machine regularly if a pager is not in use. The standard of care on this subject is not written anywhere, nor is it mentioned in any articles readily found upon a search. Thus, psychotherapists should use their judgment based upon the patient’s diagnosis and personality. For example, if a patient is borderline, then constant telephone calls or pages would be handled differently than telephone calls or pages from a patient with major depression or bipolar disorder. As always, consult and document, and err on the side of caution.

The Experts Address Patient Abandonment

Canter et al. (1994) comments, “The paramount consideration is a high standard and suggests that financial considerations in agreements will be held to be secondary to the client concerns” (p. 100). She continues, “On the basis of professional practice and literature, abandonment is commonly understood to mean that a client is (a) left without an appropriate resource to turn to when the therapist is unavailable and (b) is discontinued as a client without formal termination and referral as needed” (p. 101). In both these quotes, Canter et al. note that abandonment occurs when the patient is left without proper support and consideration.

Welfel (2002) notes that a failure to continue needed psychotherapy services is “abandonment,” and is inappropriate. Psychotherapists may not stop conducting therapy on a “whim,” or out of dislike for or anger at a patient. Welfel advises proper termination if the patient fails to pay for services by giving a proper referral to alternative service, with the psychotherapist facilitating the transition. “If other services are not immediately available, counselors may not abandon clients in need because of nonpayment of fees” (p. 258).

Therapists may be sued for patient abandonment for terminating with a patient who still needs therapy, who has been given no suitable substitute, and who suffers damages as a result of the termination (Van Susteren, 2001, p. 1). Because of the caring nature of the relationship between a psychotherapist and his or her client or patient, psychotherapists have a much more broad and complex responsibility than do those in “ordinary” business relationships between customers and their providers. Thus, psychotherapists who wish to end or terminate a therapy relationship with a patient or client must proceed with great caution (Van Susteren, 2001).

Proper Termination

If the psychotherapist has decided he or she wishes to begin the termination process with a client who has not suggested termination on his or her own, it is a very tricky issue (Van Susteren, 2001). Primarily, the client may feel abandoned and rejected, which is a clinical issue that must be handled in the termination process. Consultation throughout the entire process is suggested in order to aid in a smooth transition and ensure objectivity. Indeed, termination should not be suggested by the psychotherapist until a proper professional consultation has taken place in order to both protect the psychotherapist from being accused of abandonment or retaliation against the patient, and to protect the patient’s best interests in the transition process.

Professional consultation is the start of any termination procedure that is initiated by the psychotherapist against the will of the patient. In some cases, the patient will agree to the termination readily, as it is an appropriate next step in the treatment. In other more difficult cases, the patient will balk at the suggestion and become angry and enraged. However the patient reacts, the psychotherapist must be prepared not to weaken and reverse decisions in the face of an angry or upset patient if it is the proper therapeutic course of action.

In the case where the psychotherapist has to terminate the psychotherapy in advance of the completion of the client’s/patient/s treatment needs, professional consultants will present guidelines. In the case where HMO or insurance benefits run out (“where the employment or contractual relationship ends”), the psychotherapist puts the needs and the welfare of the patient first.

The Experts Address Proper Termination when Both Parties are Ready to Terminate

Psychoanalytic/Psychodynamic Perspective

“The proper ending of an analysis is when neither the [therapist] nor the patient puts an end to it but when it dies from exhaustion” (Curtis, 2002, p. 85). Typically, an analytic termination comes at the conclusion of a long treatment where “the reduction of symptoms and elimination of specific pathological processes that brought about the symptoms” has been accomplished (Freud, 1937/1953, 320). Firestein, in 1974, enumerated the psychoanalytic goals of treatment, some of which had to be accomplished in order to consider termination:

• Ability to work and love
• Symptom disappearance
• Structural changes in personality
• Termination based on analyst intuition
• Transference resolution
• Assessment of counter-transference issues

Curtis (2002) suggests an “open door” policy where the client/patient can return when necessary, which is a more contemporary approach, compared to the founders of psychoanalysis. Curtis works with the patient to schedule a final termination session, after summarizing and reviewing the entire treatment, coping mechanisms, and future plans. Focuses of the termination process include what was addressed, what was not addressed, what was helpful, what was not, and how to deal with crises. “In a long or intense relationship, therapist should tell patient that he or she would be pleased to hear from the patient at some point” (Curtis, 2002, p. 3.).

Cognitive-Behavioral Perspective (CBT)

Because CBT is traditionally a shorter-term structured model with emphasis on direction, homework assignments, and between-session activities, the goals of treatment differ from, and are accomplished differently, than the psychoanalytic model. The psychotherapist may be more directive, use specific techniques to modify behavior or faulty thinking or learning, or to modify behavior to increase confidence and improve relationships. “During the maintenance phase . . . CBT therapists are less directive, and their role is much like that of a lifeguard – to actively intervene only when absolutely necessary” (Goldfried, 2002, p. 7). Goldfried (2002) enumerates the goals of the CBT termination process:

• Coping skills development
• Less emphasis on therapist-client relationship
• Less likely complex relationship between therapist and client
• Paradox: successful interventions reduce client motivation to continue treatment
• Tapering off sessions allows client the opportunity to use new skills in a safe place

Proper Referrals

Although there is a fair amount of literature about accepting referrals (see Shapiro & Ginzberg, 2003), there is very little literature devoted to properly referring a patient out of one’s practice. Most attorneys will advise you to consider the following three issues when making referrals to any patient, especially one whom you have chosen to terminate (Stromberg et al. 1988; Behnke, Preis & Bates, 1998):

• Give referrals that are available
• The referral must be contacted by the psychotherapist to establish that he or she is taking new individual, family, or couple patients of the type, diagnosis, age, etc. you are referring
• Give referrals that have a similar fee structure as the referring psychotherapist
• Standard of care requires that the original psychotherapist refer the patient to another professional with an affordable fee similar to the fee the original psychotherapist charged
• Give referrals that have a “standard of care” theoretical orientation
• It is appropriate to refer the patient to another professional who works within the established and acceptable boundaries of normal practice (Stromberg et al. 1988; Behnke, Preis & Bates, 1998)

The client should be given a reasonable amount of time to establish a relationship with the new therapist by allowing for the availability of the former psychotherapist in case of a crisis or emergency situation. Consultation will help establish a proper period of time for availability after the close of therapy, based upon DSM diagnosis and patient reaction. This is most certainly a situation in which a psychotherapist should seek expert and legal consultation in order to avoid areas of legal and ethical vulnerability due to patient abandonment.

Terminating the Patient Who Presents a Serious Danger to the Psychotherapist

Gentile, Asamen, Harmell, and Weathers (2001) did research on clients who stalk their psychologists (the research was performed on subjects who were psychologists). Ten percent of psychologists responded to the survey research from a subject pool of thirty psychologists. Psychologists who were stalked had no specific demographics. However, clients who stalked their psychologists had very specific demographics. The results of the research found that the client stalkers demographics were:

• 80% single or divorced at the time of the stalking
• 94% Caucasian
• 93% graduated high school or had a GED
• 62% had mood disorders
• 76% had personality disorders
• 64% had Borderline Personality Disorder
• 79% had one or more negative childhood experiences with a caregiver
• 68% underwent childhood abuse: emotional, physical, or a mixture
• 73% had one or more recent losses or stressors
• 41% experienced a divorce or breakup of an intimate relationship

Meloy (1996) discussed therapist-stalking using the term “obsessional following” as the clinical equivalent of the legal term stalking. Zona, Sharma and Lane defined obsessional following as “abnormal long-term pattern of threat or harassment directed toward a specific individual” (1993, p. 896). Gentile, Asamen, Harmell, and Weathers (2001) pinpointed the steps that the psychologists who were stalked took to protect themselves during and after the staking incident. The authors suggest these steps be taken by all psychotherapists who are in clinical practice.

• Have an unlisted home address and phone number
• Maintain a home alarm security system
• Maintain an office security alarm system
• Avoid a home-based clinical practice
• Urban therapists should live in a separate town from their clinical practice
• Immediate contact with the anti-stalking task force for advice when a problem occurs

History of How This Applies To Psychotherapists and Which Ethics Codes Apply

It was in 1989 when Erik and Lyle Menendez threatened their psychologist’s life in Beverly Hills, California. Erik, the younger brother, confessed to in the psychologist’s office to murdering his parents. The psychologist made an audiotape of everything he could remember about the confession, and placed it in a safe deposit box, thereby attempting to protect his own life and the lives of his family and others associated with him. When both brothers began coming to sessions to discuss their rationale for murdering their parents, the psychologist told them about the audiotape, informing them the tape would remain in the safe deposit box unless “anything were to happen” to the psychologist, his family or anyone associated with him.

Earlier, when the older brother, Lyle, whom the psychologist believed was the more dangerous brother, had discovered that Erik had confessed the murders to their psychologist, Lyle came to the session and made threats to the psychologist and “everyone associated with him” in the presence of Erik. Unbeknownst to the brothers, the psychologist had asked his girlfriend to “eavesdrop” on the session from his waiting room, worrying that he might hear a confession. Once he was in receipt of the confession, the psychologist set about protecting himself and his family (and his girlfriend) while continuing to see the brothers.

Lyle asked to have one of the “therapy sessions” audiotaped in order to prepare a “defense,” as the police were quickly closing in on the brothers as primary suspects. When the psychologist’s girlfriend went to the Beverly Hills police to report the psychologist had audiotapes of the “sessions” with the Menendez brothers, the police quickly got a court order to confiscate the tapes.

Shortly thereafter, the brothers were arrested for the murder of their parents. Since the main defense in the case was child sexual abuse, the “session” tapes were expected to be full of complaints of childhood memories of sexual abuse within the family, especially between the father and the sons. Upon reviewing the tapes, sexual child abuse was never mentioned on the tapes, not once.

During the trial and trial preparation, there were several appeals as to whether or not the audiotapes of the “sessions” should be allowed into the trial as evidence. The defense team, of course, tried to apply patient-therapist privilege to the tapes, as they wished the tapes to be left out of the trial, because of they lacked evidence to back up the defense that claim the boys murdered their parents because they were sexually abused all their lives.

Naturally, the prosecution wanted the tapes in court to prove there was no sexual abuse, as it was never discussed with the psychologist as a reason for murdering their parents. After nearly four years of back and forth appeals, the appellate court made a decision: The tapes of the “sessions” would be allowed into court as evidence and would not be protected by patient-therapist privilege. This was because once the psychologist was threatened by the brothers, the psychologist was no longer conducting therapy with these patients. Once a psychotherapist is threatened by a patient, therapy can no longer occur, according to the final decision by the appellate court. Thus, the taped session, having come after the threat, was not taping a therapy session at all, so patient-therapist privilege did not apply to the taped “discussion” with their psychologist.

How This Decision was Integrated Into the 2002 Ethics Code
NASW Code of Ethics 1.16 (a-f) and CSWA Code of Ethics 2a direct social workers to help patients seek care if the psychotherapist is unwilling or unable, for some reason, to provide continued care. This is the closest social work codes come to addressing terminating a dangerous patient when the patient threatens the therapist. Therefore, I will use the American Psychological Association Code of Ethics for psychologists, where it is discussed in detail, to discuss this eventuality.

APA 10.10 (b) allows psychologists to terminate abruptly when the psychologist, or someone close to the psychologist, is being threatened by the patient. Neither advance notification of termination nor pre-termination counseling is required when the psychologist is being threatened by the patient (Fisher, 2003).

Fisher (2003) states, “a noteworthy change in the 2002 (APA) Ethics Code is the elimination of the 1992 (APA) code’s broadly worded prohibition against abandoning the client.” Termination based on reasonable professional judgment, and proper pre-termination counseling, is ethically appropriate.

The 1992 Ethics Code was more rigid about taking time to make certain the client/patient was established with a replacement psychotherapist prior to termination in the case of danger to therapist. As Fisher (2003) notes, the new 2002 code is much more lenient. We may speculate the Code was made more lenient here specifically due to cases such as the Menendez brothers where the psychotherapist’s life is threatened, or stalking occurs. There is not always time, nor is it always wise to take the time, to continue seeing a patient whom the therapist believes is dangerous to the psychotherapist or someone with whom the psychotherapist has a relationship.

REMINDER: There is no specific social work standard that directly corresponds to APA 10.10, so if a social worker is faced with such a dilemma, please consult with an expert and document the record.

SOCIAL WORK ETHICS CODES THAT APPLY TO PROPER TERMINATION

NASW Code of Ethics

Standard 1.16 (a-f) – Termination of Services

(a) Terminate services when they are no longer needed.

(b) Do not abandon patients who are still in need of services. Minimize possible adverse effect and assist in making appropriate arrangements for continuation of services.

(c) Patients who have an overdue bill may be terminated if given appropriate notice in financial contractual arrangements first and they are not a danger to self or others.

(d) Do not terminate in order to begin a social or sexual relationship.

(e) When termination or interruption is anticipated (e.g., HMO, Insurance ending), appropriate transfer or provision should be made.

(f) When leaving an agency, appropriate provisions for patients should be made.

CSWA Code of Ethics

Standard 2a – Practice Management and Termination

(a) CSWs only continue treatment with a patient as long as the service is benefiting the patient and is in the patient’s best interests. When interruption is anticipated, reasonable notice is given.

REFERENCES

Behnke, S., Preis, J., & Bates, R. (1998). The Essentials of California Mental Health Law. NY: Norton.

Caudill, B., & Pope, K. (1995). Law and Mental Health Professionals. Washington, DC: APA

Department of Justice (2000). Child Prevention Handbook… and Intervention Guide. http://www.safestate.org/ (download Child Prevention Handbook)

Canter, M., Bennett, B., Jones, S., & Nagy, T. (1994). Ethics for psychologists: A commentary on the APA ethics code. Washington, DC: APA

Fisher, C. (2003). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.

Harmell, P.H. (2000, Jul-Aug). Update on current elder and dependent abuse laws. The Los Angeles Psychologist.

Harmell, P.H. (1998, May-June). But I can’t testify in court! I’m not a forensic psychologist! The Los Angeles Psychologist.

Kemp, A. (1998). Abuse in the Family. Pacific Grove, CA: Brooks/Cole.

Large, M. (1999). Changes to the Child Abuse Laws. The California Psychologist,

MacFarlane, K. & Feldmeth, J. (1988). The Clinical Interview, Response, Child Sexual Abuse. NY: Guilford Publications.

Pope, K., & Vasquez, M. (1998). Ethics in Psychotherapy and Counseling (2nd ed,). San Francisco: Jossey-Bass.

Shapiro, E., & Ginzberg, R. (2003). To accept or not to accept: Referrals and the maintenance of boundaries, Professional Psychology: Research and Practice, 34, 258-263.

Stromberg, C., et al. (1988). The Psychologist’s Legal Handbook. Washington, DC: The Council for the National Register of Health Care Providers in Psychology.

Warren, A., Woodall, C., Hunt, J. & Perry, N. (1996). It sounds good in theory, but… do investigative interviewers follow guidelines based on memory research? Child Maltreatment, 1, 231-245.

Welfel, E. (2002). Ethics in Counseling and Psychotherapy. Pacific Grove, CA: Brooks/Cole.

Zigler, E., & Hall, N. (1989). Physical abuse of children in America: Past, present, and future, In D. Cicchetti and V. Carlson (Eds.), child maltreatment: Theory and research on the causes and consequences of child abuse and neglect. NY: Cambridge University Press.

LEARNING OBJECTIVES FOR SECTION I

• Apply knowledge of the current National Association of Social Work (NASW) Code of Ethics to case vignettes
• Apply knowledge of the current Clinical Social Work Association (CSWA) Code of Ethics to case vignettes

LEGAL & ETHICAL PRACTICE VIGNETTES

The National Association of Social Work (NASW)’s Ethics Code was approved by the delegate assembly in 1996 and revised in 2008. It is intended to serve as a guide to social workers who may or may not be clinical social workers for everyday professional conduct. It has four sections, the last of which includes 51 specific numbered standards. The Code of Ethics of the Clinical Social Work Association (CSWA), the Code specifically for social workers who are clinicians, was approved in 2006. Both codes have been the focus of this course and will be used in Section I below.

TO WHOM DOES THE ETHICS CODE APPLY?

Purpose of the NASW Code of Ethics

The NASW tells us that it has an obligation to present its basic values and ethical principles to the public in the form of the Code of Ethics. Those who must follow the code are all social workers and social work students, regardless of their professional functions, the settings where they work, or the populations they serve.

The Principle Objective of the CSWA Code of Ethics

Since this ethics code is specifically for the social worker who does clinical work, this set of standards is concerned with the well being and mental health of individuals and families who seek services from practitioners. A commitment to dignity, well being, self-determination, and integrity is a cornerstone.

Social workers are expected to be familiar with these codes and to abide by applicable State laws and regulations governing the conduct of social workers, whether or not they are members of NASW or CSWA, are required to abide by the standard of care set by the code of ethics of the profession. Essentially, any person who belongs to the social work association must abide by the relevant ethics code. However, the ethics codes have been used in the court system and by State licensing boards as the standard of care. In other words, a social worker must do what any other trained psychotherapist would do with reasonable experience or the minimum below which a psychotherapist must not fall (Stromberg, et al., 1988; Caudill & Pope, 1994). For a further discussion, see Section A - Elements of Malpractice, for a detailed discussion and for help answering post-test questions at the end of this course.

Vignettes 1-6 are related only to the social work ethics codes. A vignette will be presented after which you will be asked to peruse specific code sections. You will be able to “link” to the CSWA or NASW Ethics Code to review the codes suggested. This section of the course will guide you through a detailed discussion of how to evaluate each relevant code within each section. However, there certainly are other possibilities, and while other sections of the code should be considered in real-life dilemmas, each vignette will focus on one or two specific sections. Thus, in using the Ethics Codes in actual situations, one must evaluate and integrate all codes simultaneously. Two additional vignettes will address accountability and malpractice issues.

VIGNETTES RELATED TO SOCIAL WORK ETHICS CODES

VIGNETTE ONE – ETHICS CODE EVALUATION

Intern John is being supervised by LaTesha in his first research paper for publication. He has worked very hard, and the paper has been accepted by a major journal for publication with only a few changes. Supervisor LeTesha now insists John place her name first as primary or first author in the revised version prior to sending the publication in for final printing. Please review CSWA VII (j) RESEARCH & SCHOLARLY ACTIVITIES, RESPONSIBILITY TO THE PROFESSION, and NASW 4.08 (a-b) ACKNOWLEDGING CREDIT for the Standard that applies here.

NASW Code of Ethics

CSWA Code of Ethics

ANSWER

CSWA Standard VII (j)

CSWs only take credit for the work they themselves actually did in the research projects, and they always give credit appropriately to other researchers, writers, and contributors in correct proportions to the degree to which they contributed to the project.

NASW Standard 4.08 (a)

SWs assign proper publication credit to all of the contributors, researchers, and authors who contribute to the publication in the proper and appropriate proportion to their correct contributions and in accordance to their professional practices and input.

NASW Standard 4.08 (b)

SWs give proper citations and proper credit to other professionals for their original ideas, research, work, and research in their own professional work.

VIGNETTE TWO – ETHICS CODE EVALUATION

Therapist Jane broadcasts a very popular radio program called “Reach Out and Shrink Someone.” Jane received her masters in social work in 1980, and has done mainly radio and television media work since. On her show, she gives “advice” about children, couples, families, happiness, health and wellness, and stress management. Although she has never taken a course of training in any of these areas, and has not seen a private patient since she was an intern in 1980, she promotes herself as being an “expert” in all these areas. Therapist Jane finally got her license as a licensed clinical social worker last year. She has recently begun seeing couples, families, and children in her new private practice office. You, a licensed clinical social worker, have some concerns about this and have decided to review CSWA 4. COMPETENCE and NASW 1.04 COMPETENCE. Which standards apply?

NASW Code of Ethics

CSWA Code of Ethics

ANSWER

NASW Standard 1.04 (a) – Competence

Social workers only work in areas in which they can apply knowledge and techniques gained through education, training, supervised experience, consultation, study, and/or professional experience. Here, Therapist Jane is practicing outside her area of current competence and must get training, education, supervised experience or the like, prior to moving into private practice. One may not use the term “expert” until he or she has gained expertise through the professionally recognized methods mentioned in both the NASW and the CSWA Standard mentioned here (workshops, seminars, consultation, and the like).

CSWA Standard 4 (c) - Maintaining One’s Competence

NASW Standard 1.04 (b) - Competence

Since the knowledge base in psychotherapy is constantly changing, growing, and evolving, methods are becoming outdated rapidly and being replaced by new, more effective practices. Lifelong learning is a mandatory requirement for psychotherapists, whether or not they perform clinical duties. Thus, not only must Therapist Jane “catch up” on what she has missed while she was not practicing, but she also must work in the field several years before she can be considered an “expert” in the areas she professes. One can be an expert in many areas of social work through research and literature review, with the exception of clinical work. In order to use the term “expert,” supervised clinical work and years of independent clinical practice, along with a thorough and serious review of the history and current literature of the subject matter must be undertaken.

Standard of Care Issue

All psychotherapists are encouraged to inform patients at an appropriate time of their experience, education, specialties, theoretical orientation, and professional orientation and any other information deemed appropriate by therapist.

VIGNETTE THREE – ETHICS CODE EVALUATION

Therapist Mayes is very excited about a new vitamin he is taking. It has helped him improve his digestion, decrease his depression and anxiety, increase his energy and memory, and increase general serenity. He has decided to buy several cases of the vitamins at cost, and offer them to his private practice clients at only a few dollars over his cost. Mayes has decided to secretly audiotape the sessions where a patient buys vitamins. He decides that because his long-term research on the vitamins is in the best interests of the public, it is ethical to tape-record his sessions with patients without telling the patients in order to include these patients in a research paper he plans to write. Which standards apply here? Review CSWA 3 (a-f) RELATIONSHIPS WITH CLIENTS and NASW 1.06 (a-d) CONFLICTS OF INTEREST.

NASW Code of Ethics

CSWA Code of Ethics

ANSWER

NASW Standard 1.06 (a-c) – Conflicts of Interest

(a) SWs should avoid conflicts of interest that could interfere with the exercise of impartial judgment.

(b) SWs do not exploit others for their own interest.

(c) SWs do not engage in dual or multiple relationships.

CSWA Standard 3(a) – Relationships with Clients

(a) CSWs avoid dual or multiple relationships and are responsible for setting clear and appropriate boundaries in their professional relationships with patients. They do not exploit or harm patients or allow their judgment to be compromised. Clinical social workers are in an influential position of trust with their patients. It is extremely important to avoid dual or multiple relationships due to the possible dependency patients may feel toward their therapists. It becomes easy to exploit a patient without meaning to on a conscious level.

In this case, even if the vitamins were the best thing for the patient since sliced bread, selling vitamins to a psychotherapy patient could be considered a multiple relationship. Here, Therapist Mayes is serving two roles for his patients who buy the vitamins, and his patients are serving a second role for him as well:

Therapist Mayes’ two roles

(1) Psychotherapist = provider of therapy service to patient

(2) Vitamin salesman = provider of drug supplement to patient for money

Patient’s two roles

(1) Patient = receiver of therapy service

(2) Buyer of vitamins = receiver of vitamins and provider of other income to psychotherapist

As discussed in Vignette Two above, social workers only work in areas in which they can apply knowledge and techniques gained through education, training, supervised experience, consultation, study, and/or professional experience. Vitamin treatment is not Therapist Mayes’s area of expertise nor is it a part of his formal training. Additionally, Mayes is most likely not zoned for nor does he have a business license to sell vitamin or food products.

Therapist Mayes could be exploiting the trust and vulnerability of his patients who have faith in his judgment. By suggesting vitamin therapy, he could be taking unfair advantage of, or manipulating, patients for his own personal use, satisfaction, or profit because he may have authority over them. It is unethical to take advantage of a patient who may be vulnerable due to his or her personal situation or mental health.

CSWA Standard III (a) CONFIDENTIALITY and NASW 1.07 (a-r) – PRIVACY & CONFIDENTIALITY

INCLUDING RECORDING SESSIONS:

We all know Therapist Mayes may not perform “secret” studies under any conditions. University and agency Institutional Review Boards exist in order to protect the public, and must be consulted prior to recruiting subjects for research studies. Clearly, Therapist Mayes is prohibited from “running” subjects under any conditions unrelated to a formal research program, with or without subject agreement. Tape-recording subjects in a formal approved study must be disclosed to the subject in any case prior to taping the subject. Should a clinician, such as an intern for supervision, wish to record a client, written informed consent and release of information are required. Thus, confidentiality becomes an irrelevant point in this situation because Therapist Mayes may not do the study in the first place.

VIGNETTE FOUR – ETHICS CODE EVALUATION

Therapist Mayes’s vitamins are flying off the shelf! It may be due to the ad he took out in the local paper stating, “I am a psychologist with a new way to cure your anxiety and depression! I guarantee I can increase your energy, memory, and serenity! It will only cost you a few dollars plus the cost of a few psychotherapy sessions with a licensed psychologist. This is better than medication! Come in, try my method, and throw out your Prozac!” Occasionally Therapist Mayes asks his current patients who are taking the vitamins to come in on their lunch hours and sit in his waiting room to talk to other patients and try to convince them to buy the vitamins.

Review NASW 4.06 (a-c) – MISREPRESENTATION and CSWA VIII (a-e) Public STATEMENTS to see if Therapist Mayes is advertising appropriately.

NASW Code of Ethics

CSWA Code of Ethics

ANSWER

NASW Standards 4.06 (a-c) - Making Statements that Could Mislead the Public

Therapist Mayes has no evidence that the patients to whom he is advertising will have the reaction he “guarantees.” Indeed, he promises to “cure” symptoms, which is clearly not the standard of care in psychotherapy. Therapist Mayes comes dangerously close to practicing medicine by advising patients to “throw out Prozac,” which is irresponsible and beyond the scope of competence of a psychotherapist.

NASW Standard 4.07 - Solicitation of Patients

Therapist Mayes asks current patients to purchase the vitamins, and, we might assume, puts a certain amount of pressure on those who do not purchase the vitamins. Fisher (2003) states psychotherapists are prohibited from “soliciting business from individuals who because of their particular circumstance are vulnerable to undue influence” (p. 112). “Psychologists may not solicit business by approaching individuals directly or through another person to solicit business if the psychologist has not been invited by the individual” (p. 112). In other words, psychotherapists may not hire another person to harass a patient into buying the vitamins.

CSWA Standard I (a-b) - Furthering One’s Own Interests

Here, Therapist Mayes is clearly more interested in the value of his patients to the sale of his vitamin business rather than how well they do in psychotherapy in his office. This is a direct violation of this standard, which directs CSWs not to use their professional relationships to further their own interests in other areas such as selling vitamins or doing research for publication without informing patients.

CSWA Standard VIII (a-e) - PUBLIC STATEMENTS (Accurate Representation of Education, Training, etc.)

Therapist Mayes, whether malicious or not, has misrepresented himself as a “licensed psychologist,” which is both illegal and unethical.

The entire Standard VIII (a-e) is devoted to “Public Statements” and should be reviewed thoroughly prior to:

1. advertising
2. sending out brochures related to services
3. printing business cards or stationary
4. when any questions arise about presenting oneself and one’s credentials

STANDARD of CARE ISSUE - Patient Testimonials

Therapist Mayes, along with all psychotherapists, is prohibited from asking individuals, who are vulnerable to undue influence, to provide public commercial statements testifying to the benefits of his services. Here, the patients are being asked to convince other patients to purchase Therapist Mayes’s vitamins, which essentially turn these clients into sales people for himself (see Ethics Codes for Multiple Relationships and Maintaining Confidentiality).

VIGNETTE FIVE – ETHICS CODE EVALUATION

Your colleague, Therapist Johnson, calls you for a professional ethics consult. She is a private practice clinician who is furious with Jay and Lee, a couple that she has been seeing for two years. The couple has decided to split up and both refuse to settle the bill; however, they each want Johnson to send a copy of the record of treatment to their individual attorneys with regard to their separation and custody of their 10-year-old daughter. Therapist Johnson decided to tell each of them she would not release the therapy record until one or both of them make some attempt to begin a payment plan for their outstanding balance.

They each respond that they are aware of the sexual relationship Therapist Johnson is currently having with an intern she supervises in her office, and they are threatening to disclose this to the Ethics Committees unless she releases their records immediately. They also reminded Therapist Johnson that, about a year ago, in order for her to receive insurance reimbursement, she completed several insurance claim forms as if she were treating Lee as an individual patient who had Dysthymic Disorder, rather than treating both Jay and Lee as a couple, which is actually a V-Code diagnosis (V61.1 Partner Relational Problem) that their insurance company refuses to reimburse. Johnson admits to you that she billed the insurance company for several sessions where the couple failed to show up. She is extremely concerned that NASW and CSWA will find her at fault so she asks you to review NASW STANDARDS 1.08(a-b) & 3.04 and CSWA ii, 2(d&e). Which codes has she violated?

NASW Code of Ethics

CSWA Code of Ethics

ANSWER

NASW Standard 1.08 (a-b) – Access to Records

(a) SWs provide patients with reasonable access to their records. If SWs are worried that access to records might harm a patient, or the patient might be caused serious misunderstanding by being given access to the record, the SW provides assistance and consultation in interpreting the record. SWs only limit access to records by patients under extremely limited circumstances when there is compelling evidence such access would cause serious patient problems.

(b) When providing access to records to patients, SWs always protect confidentiality of every other person mentioned in the record.

NASW Standard 3.04 (a-d) – Client Records

(a) SWs document patient information accurately and honestly.

(b) SWs document patient information in enough detail to ensure continuity of services in delivery of services in the future.

(c) Documentation should protect patient privacy to the greatest extent possible.

(d) Records should be maintained for the number of years required by state laws following termination of services.

These standards are umbrellas that extend to all psychotherapists, and require creating, maintaining, disseminating, storing, retaining, and disposing or records and data relating to professional work in order to facilitate provision of services later by others, or allow replication of research, to meet institutional requirements, to ensure accuracy of monetary issues, and to ensure compliance with law. Thus, your colleague, Therapist Johnson, was obligated to keep records properly.

Therapist Johnson, by fraudulently billing the insurance company is using her patients Jay and Lee inappropriately to make money improperly. She has drawn them into an insurance fraud scheme that not only puts her license at risk, but also puts everyone at risk, and jeopardizes the therapeutic relationship.

Psychotherapists have the right to be paid for their work. However, psychotherapists may do no harm and may not jeopardize the welfare of a current or former patient. Here, a psychotherapist may not withhold records solely because payment for services has not been received. The term “solely” allows the psychotherapist to withhold such records if disclosure is prohibited by law or in the psychotherapist’s judgment release of records would not cause substantial harm to the patient or others (Fisher, 2003). In the case above, Lee and Jay are not faced with an emergency situation; therefore, Therapist Johnson may not be obligated to release the records of treatment at this time. However, this does not cover legal situations such as subpoenas or court orders or certain HIPAA situations (Fisher, 2003). As always, when unsure whether or not to release records, consult with an expert in this area.

However, Therapist Johnson is certainly in ethical hot water in two other areas, which will be discussed below.

CSWA Code of Ethics

CSWA Standard II – Responsibility to Clients

2. Practice Management (d&e)

(d) CSWs keep records for families and each individual they treat in accordance with relevant administrative rules and contractual obligations and state and federal laws.

(e) Requirement of the ethics code applies to all media such as electronic and written records.

CSWs establish a policy for retention of records, disposal of records and communicate this to patients. In the case of the therapist’s death or incapacity, the CSW should have a plan or procedure for proper handling of patient records that protects patient privacy and is in accordance with state law.

The idea here is to:

• Facilitate provision of services later if needed to the client by other professionals
• To allow for replication of research
• To aid in accuracy of billing
• To ensure compliance with law
• To properly store records in databases
• To be certain that records, insurance information, and billing are done accurately and appropriately. In this case, this would avoid billing for a false diagnosis (Axis I 300.4 Dysthymic Disorder) that is commonly and universally paid for by the insurance company, rather than what is actually being treated (V61.1 Partner Relational Problem), which may not be covered by insurance because a V-code is “a condition, not a mental disorder.” This is insurance fraud and a severe license and ethics violation.

Psychotherapists must provide accurate diagnoses to insurance companies. Providing incorrect diagnoses in order to obtain financial gain from a health plan is a violation of this standard and represents insurance fraud. In addition, billing for “no show” sessions or missed sessions such as Therapist Johnson did is considered insurance fraud, unethical, and illegal and is a violation of this standard. Unattended sessions must be indicated as such on billing statements to insurance companies in order to be fully honest and accurate. Billing an insurance company at a different rate than one is billing a client, or using an “insurance diagnosis” is illegal and unethical. An insurance diagnosis means recording a diagnosis that the psychotherapist knows is compatible with insurance company billing practices and will be reimbursed, such as Axis I 300.4 Dysthymic Disorder, which is a parity diagnosis that has “depth” and will be reimbursed for more sessions than a non-parity diagnosis. Some insurance companies refuse to reimburse Axis II and V-Code diagnoses; thus, psychotherapists think they are doing their patients a favor by avoiding these diagnoses and using “reimbursable” Axis I and parity diagnoses. This practice puts one’s license in jeopardy. Consult with your malpractice insurance carrier and the patient’s insurance company for assistance.

These standards are umbrellas that extend to all psychotherapists, and require creating, maintaining, disseminating, storing, retaining, and disposing or records and data relating to professional work in order to facilitate provision of services later by others, or allow replication of research, to meet institutional requirements, to ensure accuracy of monetary issues, and to ensure compliance with law. Your colleague, Therapist Johnson, was obligated to keep records properly.

NASW Standard 2.07(a) - Multiple Relationships with Students and Supervisees

These types of relationships are specifically prohibited by this standard because they are confusing, inherently asymmetrical, and unbalanced with respect to power. Considering grades, future career opportunities, letters of recommendation, scholarships, stipends, reputation, and internships, supervisors and professors have a vastly uneven relationship with those they supervise and teach.

Sex with a supervisee or student is a specific example of an unethical multiple relationship where both parties’ professionalism and objectivity is impaired. It provides students and supervisees with an unethical model of conduct and decreases public confidence in the profession. Here, not only did Therapist Johnson do the wrong thing, but also it returned to haunt her in the form of patient blackmail! Lee and Jay somehow have become aware of this indiscretion, and are using it against Johnson in a form of blackmail that is both humiliating and dangerous, and clearly not therapeutic for the couple.

VIGNETTE SIX – ETHICS CODE EVALUATION

Therapist Jose has been offered a free, all expenses paid trip to Paris for three months. She has decided to take the trip but has a few difficult issues to work out prior to taking off for Paris. She can only go on the trip if she can arrange to leave in ten days. She has decided to put another professional on call for her once she gets to Paris because she does not have the time to make such arrangements before she leaves. She plans to give her 22 patients between seven- and ten–days’ notice that she will be gone for three months. Review NASW STANDARDS & CSWA STANDARDS

NASW Code of Ethics

CSWA Code of Ethics

ANSWER

NASW Standard 1.16 (a-f) – Termination of Services

(a) Terminate services when they are no longer needed.

(b) Do not abandon patients who are still in need of services. Minimize possible adverse effect and assist in making appropriate arrangements for continuation of services.

(c) Patients who have an overdue bill may be terminated if given appropriate notice in financial contractual arrangements first and they are not a danger to self or others.

(d) Do not terminate in order to begin a social or sexual relationship.

(e) When termination or interruption is anticipated (e.g., HMO, Insurance ending) appropriate transfer or provision should be made.

(f) When leaving an agency, appropriate provisions for patients should be made.

CSWA Standard 2a – Practice Management and Termination

(a) CSWs only continue treatment with a patient as long as the service is benefiting the patient and is in the patient’s best interests. When interruption is anticipated reasonable notice is given.

The primary difficulty Therapist Jose is faced with here is that giving patients only seven- to ten-days’ notice that he will be away voluntarily for a three-month vacation in Paris, which is an extremely lengthy time in this profession. This is generally considered a breach of the standard of care. These Standards suggest social workers should provide some sort of appropriate pre-vacation counseling prior to ending or interrupting a therapeutic relationship. In fact, if the patients do not wish to remain on “hold” for three months, and wish to terminate, the requirements remain the same. These requirements include:

• Giving enough advance notice of vacation or time away from the office
• Giving the patient enough time to ask questions about the termination
• Discussing in advance the reasons for termination
• Encouraging the patient to ask questions and clear up any misunderstandings prior to the end of treatment
• Providing enough referrals to the patient such that the client will be able to find alternative care (Fisher, 2003)

Claims of patient abandonment sometimes arise if psychotherapists do not provide appropriate coverage during off times such as this proposed Paris trip for Therapist Jose. Jose must be reasonably accessible to her patients, or put someone on call during her absence whom she knows will be available to patients in the same way in which she would have been given she were in town, especially those patients who are prone to “emergencies” (Tarasoff, danger to self or other). It is Therapist Jose’s responsibility to ensure the substitute therapist provides coverage via pager, or checks his or her phone message system (voicemail or answering service) on a routine basis (Welfel, 2002). Additionally, Therapist Jose is in jeopardy of an ethical violation and subsequent accusation of patient abandonment for failing to give enough notice to her patients that she will be out of the office voluntarily for such a long period of time (three months in Paris) and unable to attend regularly scheduled appointments. In other words, the therapeutic alliance will not be maintained for a long period of time with barely any notice to her patients.

Therapist Jose is also responsible for ensuring that the substitute therapist is qualified, in both training and awareness of her patient’s special needs. She must choose wisely, as she is responsible for the substitute therapist’s actions on Jose’s behalf. Therapist Jose must receive written consent for discussion of confidential information regarding patients with the substitute caregiver, especially in the case of at-risk patients (Tarasoff, suicide, homicide, etc.) (Harmell, 1997).

Although the patient is free to terminate or take lengthy breaks from treatment whenever he or she wishes, the psychotherapist does not have the same freedom. The psychotherapist has a duty to provide continuity of care unless there is some reasonable reason not to do so (e.g., the psychotherapist becomes ill or has an emergency situation). Normally the standard of care in cases of psychotherapist emergency is to place another professional on call in one’s place until the psychotherapist can return to work (Stromberg et al., 1988).

Canter et al. (1994) comments “The paramount consideration is a high standard and suggests that financial considerations in agreements will be held to be secondary to the client concerns” (p. 100). She continues, “On the basis of professional practice and literature, abandonment is commonly understood to mean that a client is (a) left without an appropriate resource to turn to when the therapist is unavailable and (b) is discontinued as a client without formal termination and referral as needed” (p. 101). In both these quotes, Canter et al. note that abandonment occurs when the patient is left without proper support and consideration.

Experts note that a failure to continue needed psychotherapy services is “abandonment” and is inappropriate. Psychotherapists may not stop conducting therapy on a “whim” or for non-emergency personal needs. Experts advise proper termination, alternative services, and especially appropriate notice to patients when the psychotherapist is taking time away from the office. The rule of thumb is, the longer the therapist will be away, the more notice should be given to the patient (Harmell, 1997). Therapists may be sued for patient abandonment for leaving a patient without proper coverage who still needs therapy, who has been given no suitable substitute, and who suffers damages as a result (Van Susteren, 2001).

Proper Referrals

If any of Therapist Jose’s patients chooses to voluntarily terminate treatment with her due to her three-month absence, she is required to properly terminate with these patients. However, she has not given them enough time to “properly” terminate. Therefore, she is still in violation of the ethics codes and the standard of care as discussed below. (Stromberg et al. 1988; Behnke, Preis & Bates, 1998):

• Therapist Jose must provide referrals that are available and accepting new referrals
• The referral must be contacted by the Therapist Jose to establish that he or she is taking new individual patients of the type, diagnosis, age, etc. he is referring
• However, the transfer of the patient cannot be properly and professionally done in such a brief amount of time
• Therapist Jose must give referrals to his current patients that have a similar fee structure as himself
• Standard of care requires the original psychotherapist to refer the patient to another professional with an affordable fee similar to the fee the original psychotherapist charged
• Therapist Jose is required to give referrals that have a “standard of care” theoretical orientation
• It is appropriate to refer the patient to another professional who works within the established boundaries of normal practice (Stromberg et al. 1988; Behnke, Preis & Bates, 1998)

Therapist Jose’s referred patients should be given a reasonable amount of time to establish a relationship with the new therapist by allowing for the availability of Therapist Jose in case of a crisis or emergency situation or to consult with the new psychotherapist should the need arise. The standard of care requires Jose to receive consultations that will help establish a proper period of time for availability after the close of therapy, based upon DSM diagnosis and patient reaction. This is most certainly a situation in which a psychotherapist should seek expert and legal consultation in order to avoid areas of legal and ethical vulnerability due to patient abandonment.

Conclusion

Therapist Jose has violated the NASW and CSWA Standards discussed above and, should any of her patients file an ethics complaint, most likely a case would be opened for investigation.

VIGNETTES RELATED TO ACCOUNTABILITY

FOUR ELEMENTS OF MALPRACTICE (REVIEW AND SUMMARY)

There are four elements of a malpractice suit, and all four elements have to be believed to be met by an attorney in a court of law in order to “prove” a civil suit for malpractice against a psychotherapist. In some cases, the difficulty of proving a civil suit for malpractice, or the difficulty of defending a psychotherapist against a complaint, is reflected in out-of-court settlements with the psychotherapist’s insurance company.

A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether the psychotherapist has breached the standard of care (Black’s Law Dictionary, 1996). Here is where the citizen must hire an attorney who is well-versed in the area of civil suits for malpractice with regard to mental health professionals, and where the psychotherapist must call his or her malpractice insurance agency for a vigorous defense.

Duty of Care. A Duty of Care arises when there has been an agreement between the psychotherapist and the patient that they will work together in a professional therapeutic relationship.

Standard of Care. This refers to the level of proficiency against which any other psychotherapist’s work will be measured or compared. In other words, the standard of care is considered to be what any other properly trained and appropriately educated psychotherapist with similar experience would do given the same type of situation. Another definition for standard of care is known as the minimum below which a psychotherapist must not fall (Stromberg, et al., 1988; Caudill & Pope, 1994). Additionally, standard of care is established by (1) state law, (2) case law, and (3) the relevant Ethics Codes.

Demonstrable Harm. Can harm be shown to have occurred to the “victim”? Was anyone hurt or harmed? If so, what are the damages to the victim? The idea is to return a harmed individual to the condition in which they existed prior to the harm. Money is the only remedy available in a civil suit. In many cases of demonstrable harm with defendants who are psychotherapists, the damage claimed is psychological in nature. Therefore, it is much more difficult to prove damages and much harder to approximate the financial award.

Proximate Cause. “Proving” that the psychotherapist’s wrongful conduct caused the damage to the victim, and that it was the direct or proximate cause of the plaintiff’s injury, is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychotherapist for their acts that “caused” the damage to the client. The question is – would the client have been damaged if the psychotherapist had done anything differently? Where injury allegedly occurred, the client must still prove that the alleged injury was caused by the psychotherapist’s breach of the standard of care (Caudill & Pope, 1995).

See Section A - Elements of Malpractice for a detailed discussion, and if you should you require help answering posttest questions at the end of this course.

VIGNETTE SEVEN – MALPRACTICE

Therapist Linda has been seeing Bill for three months, during which her own marriage breaks up. She notices that Bill is a man her own age, and she is attracted to him. Bill calls Therapist Linda because he is unable to get to his usual weekly appointment due to car trouble. He is very upset because his girlfriend has broken up with him, and he tells Therapist Linda that he knows he should have an appointment as soon as possible. Linda is concerned because Bill was originally referred to her due to his suicidal behavior and thinking, and she has been able to help him become more stabilized in his thinking and behavior. Worried about his current state of mind and that he may become suicidal once again, Therapist Linda suggests Bill take a cab to her office. He tells her he does not have enough money for a cab, but he is still feeling very suicidal and wants to see her today. She thinks she had better see him today because of his risk for suicidality, so she agrees to pay for a taxi and tells him to come as soon as possible.

As the weeks progress, Therapist Linda cannot afford the many taxicab rides it takes to transport Bill to and from his sessions with her at her office. It seems he is unable to get his car repaired due to lack of funds. Linda decides to meet Bill halfway between her office and his apartment, in a local park rather than continue paying for taxi rides she cannot afford. They sit on a bench and have “sessions” where Bill tells Therapist Linda how suicidal he feels about the breakup with his girlfriend. Linda realizes this is not exactly “traditional” therapy, but feels she is helping Bill, and she is concerned that he may act out on his suicidal thoughts if she refuses to meet him in the park. Therapist Linda is also afraid of being accused of “patient abandonment” if she refuses to see him under these circumstances.

During a recent meeting at the park, it begins to rain, and Therapist Linda and Bill run to the nearest place for shelter, which happens to be “The Dew-Drop Inn,” a local bar and grill. Once inside, Bill orders them each a beer, and they continue to talk. Strangely, Linda notices that, as she was getting dressed this morning, she was particularly concerned with what she picked to wear for her “meeting” with Bill, how her hair looked for Bill, and if Bill would find her attractive in her new blouse. She recalled that the Ethics Code said something about this in some sort of code they were always talking about, something like “get consultation if you are attracted to a patient,” or “multiple relationships that are sexual in nature with clients are not acceptable”, but she cannot afford an expensive consultation; besides, this is just an innocent meeting, not a sexual encounter.

Because Bill says he cannot afford to get his car fixed or to take a cab to Therapist Linda’s office, the following session takes place in the bar, as well. As the season changes into fall, and the weather becomes cooler, Therapist Linda and Bill begin to meet at his apartment. It does not take long before they decide to have a sexual relationship.

Therapist Linda feels guilty and uncomfortable about the sexual relationship with Bill. She eventually realizes she must get control of her life, and decides to contact her ex-husband in order to try to end the relationship with Bill. However, Bill continues to ask Linda for “sessions” in his apartment, and still talks about killing himself, especially if “she ever refuses to see him.” Therapist Linda reunites with her ex-husband and tells Bill he has to find another therapist because she is not available to treat him any longer.

Bill finds a good attorney who tells him he has an excellent malpractice suit based upon the four elements required.

DUTY OF CARE

Therapist Linda had been treating Bill for three months, which generally establishes a duty of care. Once the parties involved agree to work together in psychotherapy, a duty of care is established. Signing an informed consent, paying for a session, and doing an intake do not necessarily establish a duty of care. As discussed in Section A - Elements of Malpractice “duty of care” can be mistakenly established by improperly implying to a patient that the psychotherapist has time in his or her practice, is available to treat the patient, or is willing to or wanting to treat the patient prior to a proper intake or first appointment.

In a clinic or hospital setting, advertising is required to be accurate and fair. For example, if the setting provides “walk-in” services 24-hours a day, with no restrictions, then to have restrictions that are not mentioned would be unethical and unfair. Most psychotherapists are used to engaging in the practice of stating something that suggests one’s availability for an evaluation prior to establishing a duty of care in order to determine if there can be a working therapeutic relationship prior to actually beginning treatment.

STANDARD OF CARE

Therapist Linda has clearly breached the standard of care that another psychotherapist would have used to treat Bill. Since it is a violation of the NASW and CSWA Ethics Codes to have sexual relations with a current or former patient, there can be no question that Therapist Linda practiced below the minimum standard required by the profession. Since court, as well as the licensing boards, will often use the Ethics Codes to address issues of standard of care, a review of the codes that apply to this situation appears below.

NASW Code of Ethics

CSWA Code of Ethics

NASW Code of Ethics

Standard 1.09 – Sexual Relationships (a-d)

(a) Under no circumstances do SWs have sexual activity with patients.

(b) SWs do not engage in sexual activities or sexual contact with patient’s relatives or others who have a close personal relationship with the patient. SWs do not have sexual contact with relatives of their patients. The SW maintains the entire burden for setting clear and appropriate boundaries, culturally and otherwise.

(c) SWs do not engage in sexual activity with former patients except under the most extraordinary circumstances.

(d) SWs do not provide services to those with whom they have had sexual relationships.

Standard 1.11 – Sexual Harassment

SWs do not sexually harass clients, including sexual advances, solicitation, and requests for sexual favors.

CSWA Code of Ethics

Standard 3 – Relationships with Clients (a-b)

(a) CSWs are responsible for setting clear boundaries about dual and multiple relationships. The do not take chances where there is an opportunity for patient exploitation, especially when the CSW is seeing two or more patients who know each other.

(b) CSWs do not engage in sexual activity with former patients except under the most extraordinary circumstances. CSWs do not provide services to those with whom they have had sexual relationships.

In general, most agree that other acts that are unethical dual relationships are borrowing money from a patient, hiring a patient, doing business with a patient, having a close personal relationship with a patient, or having close relations with a patient’s relative.

Here, Therapist Linda entered into another role (sexual partner) with Bill at the same time she was in a professional role (psychotherapist) with Bill. However, in writing this standard, the ethics committee task forces usually make every effort to clarify that not all multiple relationships are unethical, only those “reasonably expected to cause impairment or risk exploitation or harm” (Fisher, 2003, p. 5). Some psychotherapists attend a patient’s, supervisee’s, or student’s wedding or graduation, or an athletic event of a minor patient. As long as none of these activities reflect opposition to the theoretical orientation being used in the treatment plan, and it does not impair judgment or risk exploitation, and the patient is not opposed to it, then it does not reasonably breach this standard. Incidental encounters with patients at places of worship, sporting, or entertainment events are not unethical, otherwise psychotherapists would be relegated to staying in their homes! Fisher (2003) suggests keeping a record of chance encounters that could possibly be misinterpreted such as that with a borderline or psychotic client.

The legal prohibition against sexual activity with a current or former client that comes directly from California’s civil code, and prohibits sexual activity between therapist and client, is as follows (be sure to check the laws in your state)

There shall be no sexual activity between psychotherapist and client:

(a) While in therapy,

(b) Within two years of a normal termination

(c) By means of therapeutic deception” – By therapeutic deception, the legislature means the use of coercion to coax a client into inappropriate sexual behavior (e.g., “I can only help you if you take off your clothing and let me massage you.”).

Fisher describes a broad interpretation of sexual intimacies including, “fondling, intercourse, kissing, masturbation in front of a patient, telephone sex, touching of genitals, erotic hugging, verbal invitations to engage in sexual relations, or communications (in person or via electronic means) intended to arouse” (2003, p. 225). This responsibility to prevent sexual intimacies lies solely with the therapist, not the patient, no matter who initiates the behavior, contact, or makes the sexual overtures. Sexual intimacies with patients exploit the power differential and increase the potential influence psychotherapists have over patients. Sexual intimacies also impair the provider’s ability to remain objective and remain clear in judgment. Sexual intimacies exacerbate the patient’s mental illness and general symptom picture (Sonne & Pope, 1991).

Non-sexual physical contact with patients (handshake or non-erotic hugging) is generally not considered a violation of this standard (Fisher, 2003). However, care must be taken so that the patient does not misperceive non-sexual touching as sexualized touching or a prelude to a potential sexual intimacy. Research indicates that some slight blurring of strict boundaries (e.g., meeting outside of office, attending a social event, having one’s office in one’s home, attending an outside event with a patient) are precursors of sexual misconduct (Lamb & Catanzaro, 1998).

NASW Code of Ethics

Standard 1.16 (a-f) – Termination of Services

(a) Terminate services when they are no longer needed.

(b) Do not abandon patients who are still in need of services. Minimize possible adverse effect and assist in making appropriate arrangements for continuation of services.

(c) Patients who have an overdue bill may be terminated if given appropriate notice in financial contractual arrangements first and they are not a danger to self or others.

(d) Do not terminate in order to begin a social or sexual relationship.

(e) When termination or interruption is anticipated (HMO, Insurance ending) appropriate transfer or provision should be made.

(f) When leaving an agency, appropriate provisions for patients should be made.

CSWA Code of Ethics

Standard 2a – Practice Management and Termination

(a) CSWs only continue treatment with a patient as long as the service is benefiting the patient and is in the patient’s best interests. When interruption is anticipated, reasonable notice is given.

This standard requires psychotherapists to properly terminate therapy under the following circumstances:

• Psychological services are no longer clinically necessary or appropriate for the patient

This is clearly not the case with Therapist Linda and Bill. Therapist Linda actually had terminated proper therapy with Bill, and had abandoned him, somewhere along the time when she failed to seek consultation upon feeling attracted to him. When she began to meet him outside the confines of the psychotherapy setting under the pretense that he could not afford transportation to her office, the therapy part of their relationship was over for good. Indeed, drinking alcohol with a patient is a severe departure from professional conduct that is never within the dictates of any proper treatment plan, and is always considered gross negligence by licensing boards. Bill continued to need therapy (obviously so did Therapist Linda!) that he was not getting. Seeing Linda for the pseudo-therapy meetings at the park, at the bar and grill, and finally at his apartment for sexual encounters was actually preventing him from getting real therapy with another more appropriate professional.

• The patient is not likely to benefit any longer from the psychotherapy.

True, Bill was likely no longer receiving benefit from his “work” with Therapist Linda at the point when she told him their therapeutic relationship was over. However, the ethics codes mean here that the psychotherapist was to evaluate the status of the effectiveness of the psychotherapeutic relationship and techniques being used. If little or no progress is occurring, despite consultation and alternative methods being utilized where possible, then termination should be considered and discussed with the patient. Of course, proper termination (as discussed in the course) includes reasonable notification to the patient, getting proper consultation from an expert, appropriate referrals, and adequate groundwork prior to ending treatment. Therapist Linda ended treatment abruptly with a suicidal patient with whom she was having a sexual relationship.

• The patient is being harmed by continued service.

As above, Bill was being harmed by continued service with Therapist Linda. However, ethics codes do not have this type of relationship (patient-therapist sexual relationship) in mind when crafting these standards. If a patient is deteriorating while receiving continued treatment despite all efforts and consultations with colleagues, when it is appropriate to terminate, patients should be referred to alternative treatments that may be more effective.

Additionally, this standard requires “pre-termination” counseling and the psychotherapist must suggest alternative services to the patient. This includes:

1. Giving advance notice of termination to the patient.
2. Discussing with the patient the reasons for termination prior to simply informing the patient about termination.
3. Giving the patient time to ask questions about the termination and to make inquiries regarding the process.
4. Providing referrals for alternative services when appropriate.

Note that Therapist Linda did none of these pre-termination activities for Bill; she simply told him the therapy was over without helping him to find alternative treatment. Therapist Linda failed to provide Bill with an appropriate environment in which to deal with the loss of their “psychotherapy” relationship and to deal with the loss of both Therapist Linda as a lover and Therapist Linda as a psychotherapist.

DEMONSTRABLE HARM

Bill’s attorney would attempt to prove in court that Bill had sustained damages that could be estimated and remedied in the form of money. Once again, the only remedy that can be realized from winning a civil suit is money. In some cases, not only is the plaintiff given enough money to return him or her back to the condition he or she was in prior to the damage, but also the court will award punitive damages. Punitive damages are awards given in addition to actual damages (what the plaintiff actually lost) when the defendant acted with recklessness, malice, or deceit. Punitive damages are damages intended to punish the defendant and thereby deter such conduct in the future by others (Black’s Law Dictionary, 1996, p. 164).

PROXIMATE CAUSE

The fourth required element of a malpractice civil suit, proximate cause, is defined as a cause that “directly produces an event and without which the event would not have occurred…. a cause that is legally sufficient to result in liability” (Black’s Law Dictionary, 1996, p. 887). In other words, the question the court must ask is, “Did something the psychotherapist did, or failed to do, cause the demonstrable harm?” Here, the attorney would surely conclude that Therapist Linda exacerbated Bill’s suicidality and mental condition by having a sexual relationship with him. Additionally, Therapist Linda deterred his faith in the profession of social work, and prevented him from seeking and receiving proper psychotherapy from someone who would have treated him properly, thereby helping him with his symptoms at an earlier point in his life. In other words, would Bill have suffered harm if Therapist Linda had done anything differently? If Therapist Linda had treated Bill using standard of care methods, and following the dictates of the law and code of ethics, rather than eventually having a sexual relationship with him and then abandoning him when she got scared, would he have failed to later suffer damages?

CONCLUSION

It is not possible to predict the outcome of this case, except to say that it is clear Bill’s attorney would have a chance at presenting the four elements of a malpractice suit. Many times insurance companies may settle out of court when the evidence is as good as the evidence in this case.

Additionally, it should not be forgotten that Bill has three other options to pursue in holding Therapist Linda accountable for her actions as a psychotherapist. These three other options will surface in the next vignette.

VIGNETTE EIGHT – CRIMINAL ALLEGATIONS, ETHICS COMMITTEE, LICENSING BOARDS

Bill’s company, the “Megalomanic Insurance Company,” wins his civil suit against Therapist Linda and receives the highest settlement in the history of his state. Bill is energized by the civil suit win, all the attention he has gotten from the newspapers, radio and television interviews, and his recent trip to Chicago to be on the Oprah, Dr. Phil, Ellen, and the evening Entertainment television shows. He also has gotten into new therapy, and he decided to contact his state’s licensing board, the Attorney General, and the CSWA and NSWF Ethics Committee to make further ethics and licensing complaints against Therapist Linda for patient abandonment and general and professional negligence. (See Section A - Introduction to Accountability for a more detailed discussion).

Criminal Allegations

Having sex with a current patient is a criminal act in most states (please check with your licensing board for legal requirements in your state). However, this is the least likely to be pursued of the four mechanisms holding a psychotherapist accountable for his or her behavior in a psychotherapy practice. This is due to the severe backlog and amount of work most state attorney general offices have to do in this area. If there is a negative outcome against the psychotherapist where the attorney general has gotten involved in criminal allegations against the psychotherapist, the psychotherapist can find him or herself incarcerated.

Ethics Committees

The national version of the ethics code (NASW) was approved by the delegate assembly in 1996 and revised in 2008. It is intended to serve as a guide to social workers who may or may not be clinical social workers for everyday professional conduct. It has four sections, the last of which includes 51 specific numbered standards. The Code of Ethics of the Clinical Social Work Association (CSWA) (2006) exists specifically for clinicians.

When Bill sends a written formal complaint to either of these ethics bodies based upon his sexual relationship with Therapist Linda, the committee will decide whether to open an investigation. If the Ethics Committee believes there is enough evidence, they will contact Therapist Linda for a response.

State Licensing Boards

All states have a licensing board for clinical social workers. The purpose of these boards is to protect the health, safety, and welfare of the consumers of psychological services. These boards advocate for the public and empower the consumer through education about the profession, information on disciplinary actions, and assuring minimal competency for LCSWs.

Similar to the NASW and CSWA Ethics Committees, if the licensing board believes there is enough evidence to open an investigation, they will contact Therapist Linda for a response.

CONCLUSION

It is clear Therapist Linda has breached several Ethical Standards (multiple relationships, not taking care of personal problems, etc.) and has put her license in jeopardy in most states. Whether she has committed a criminal act depends upon the criminal statutes in the state in which she practices. If Bill chooses to sue Therapist Linda in a civil suit for malpractice, evidence will likely be easy to find – the bar and grill in which they had “sessions” will have a record of their meetings along with a record of the alcohol consumption. Therapist Linda will probably admit to the sexual part of the relationship, which, in some states (e.g., California) is an automatic license revocation, if proven or admitted.

Please note that licensing and ethics complaints need only a breach in the standard of care to get underway and possibly investigated. Civil suits require a higher standard of proof and are “proven” within the auspices of the court. Thus, the four elements of malpractice are required only for a civil suit, not for a license or ethics complaint.

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