TARASOFF, SUICIDALITY AND ABUSE: SOCIAL WORK ETHICAL DILEMMASby Pamela H Harmell, Ph.D..
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Course Outline
Section A. Introduction and Review Section G. Elder Abuse Reporting Section H. Treatment Termination
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.
In all cases, the authors cited are accepted and published experts in the field of legal and ethical issues in psychotherapy; however some of the seminal papers and books are also used to discuss the foundation of the topics being discussed. 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 (THE 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 (THE CSWA CODE OF ETHICS), approved in 1997 and reviewed in 2006, is used in this course. You will find the websites and codes at the links.
The changes to the 2008 NASW Code of Ethics were made to the following sections as indicated below:
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 the segment of the population that may have been typically discriminated against (i.e. sexual orientation, age, gender, color, religion, etc.). These four Standards have included the words “immigration status” to 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.
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! Section A: 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 (“Question for Reflection”). References for material will be given throughout the text, with a reference list at the end of the course.
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 the document in a separate window.
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 the course. 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 the law. 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?
INTRODUCTION TO BOTH SOCIAL WORK ETHICS CODES
The national version of the ethics code NASW was approved by the delegate assembly in 1996. It is intended to serve as a guide to social workers who may or may not be clinical social workers for everyday professional conduct. It has four sections, the last of which includes 51 specific numbered standards that will be the focus of this course along with the Code of Ethics of the Clinical Social Work Federation (CSWF) for clinicians (to be discussed subsequently). The four major sections of the Code are as follows:
• Preamble. Summarizes mission and core values. • Purpose of NASW Code – Overview of functions of the code. • Ethical Principles – Six specific core values to be followed. • Ethical Standards – Six major numbered code sections (51 specific standards)
The six major code sections including the Ethical Standards are as follows:
1. Social Workers’ Ethical Responsibility to Clients - 16 Standards covering everything from informed consent to sexual exploitation 2. Social Workers’ Ethical Responsibilities to Colleagues - 11 Standards covering everything from confidentiality to incompetence 3. Social Workers’ Ethical Responsibilities in Private Practice - 10 Standards covering everything from supervision to record-keeping 4. Social Workers’ Ethical Responsibilities as Professionals - 8 Standards covering everything from competence to soliciting patients 5. Social Workers’ Ethical Responsibilities to the SW Profession - 2 Standards covering integrity of profession and evaluation of research 6. Social Workers’ Ethical Responsibilities to the Broader Society - 4 Standards covering public emergencies to political action
The 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.
In all cases, the authors cited are accepted and published experts in the field of legal and ethical issues in psychotherapy; however some of the seminal papers and books are also used to discuss the foundation of the topics being discussed. 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 1997 and reviewed in 2006, is used in this course. You will find the website below for downloading or linking to both of these ethics codes.
In the Preamble of this document, CSWA states:
The principal 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 which offers opportunities to all its members in a just and non-discriminatory manner. (CSWA, 2006, p. 1)
The Code of Ethics of the CSWF are specific to clinical social work and will be quoted when relevant in this course. The following describes the content of the CSWF Code of Ethics in more detail:
Preamble Explanation of objective of social work I. General Responsibilities of Clinical Social Workers A-D CSW maintain high standards II. Responsibility to Clients 1. Informed Consent to Treatment 2. Practice Mgmt & Termination 3. Relationships with Clients 4. Competence III. Confidentiality A-E CSW maintain confidentiality IV. Relationship with Colleagues A-E CSW act with integrity V. Fee Arrangements A-E CSW maintain honesty re fees VI. CSW Are Responsible to the Community A-C CSW practice their profession within legal boundaries VII. Research & Scholarly Activities A-K CSW maintain ethical practices in research and teaching VIII. Public Statements A-E Public statements are always honest and truthful The purposes of an ethics code for psychotherapists are many-facetted, including establishing the integrity of the profession, provision of a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and the ethics committee’s ability to adjudicate (to act as judge when another social worker violates an ethics code). There are five important reasons for having an ethics code in any profession
• 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.
THE ELEMENTS OF MALPRACTICE
There are four elements of a civil suit for malpractice. All four have to be believed to be satisfied in a court of law. In some cases, the difficulties of attempting to prove a civil suit, or defending against a complaint, are reflected in an out-of-court settlement. Sometimes the malpractice carrier advises that the expense—both emotionally and financially—is not worth the risk of going to court for the plaintiff.
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) “Standard of care” will be defined 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 does begin to develop an assumption that he has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for consideration of longer-term therapy? Is the work being done merely as an evaluation using assessment instruments? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavioral model of treatment? If a civil suit should occur, and the parties had not decided whether they wished to work together by the third session or so, the court may decide for them that a “duty of care” had been established. Exchange of money alone does not establish a duty of care; however, if there is nothing else for the court to consider, it may look at any financial matters in an attempt to establish responsibility.
Standard of care. This broad term refers to the level of proficiency against which any other psychotherapist’s work will be measured or compared. In other words, what any other trained psychotherapist would do with reasonable experience. This is also known as the minimum below which a psychotherapist must not fall (Stromberg, et al., 988; Caudill & Pope, 1994).
Generally, the standard of care is defined by state statute (e.g., California Penal Code 11166, child abuse reporting law; California Welfare and Institutions Code 5150, involuntary hospitalization) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a “collection of reported cases that form the body of jurisprudence within a given jurisdiction.” (Black’s Law Dictionary, 1996, p. 84) This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and must be followed just as closely as law that has progressed through the traditional legislative process. Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest.” (p. 564) This is generally known as the “reasonable therapist doctrine.” These authors go on to explain that competent treatment can lead to unsuccessful results without meaning that the treatment was negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used, a judgment call that proves wrong is not actionable.” (p. 564)
Demonstrable harm. Can hurt or harm be shown to have occurred to the “victim”? If so, what are her damages? The idea is to return a harmed individual (client or patient) to the condition in which the person existed prior to the harm. This is done in only one possible way in a civil suit—a monetary judgment. 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 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 occur, 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)
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, 2010; 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 INTRODUCTION TO ACCOUNTABILITY
There are four mechanisms holding psychotherapists accountable for our actions as mental health professionals. A brief description of each follows:
State licensing boards. A state licensing board is the agency that “giveth and taketh away” the ability to practice psychology. It decides how many hours of continuing education must be taken to renew the license and continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychotherapist fails to respond to its dictates.
Ethics committees. This second mechanism sets guidelines of practice that are considered the standard of care in the profession. It can also take sanctions against the psychotherapist for improper behavior.
Civil suit for malpractice. Mechanism 3 is a generally unpleasant factor of American society – when one citizen takes civil action against another citizen. In a civil suit, the only thing being claimed is financial damages, and the only remedy is money. However, punitive damages are also a possibility where the court awards extra financial damages as punishment in a particularly egregious situation. A psychotherapist does not want to be confronted by this element of accountability, as it is generally grindingly slow and complex, not to mention painfully expensive.
Criminal allegations (Attorney General Involvement). Criminal allegations are the least likely of the four mechanisms holding a psychotherapist accountable for practice behavior. If there is an unfortunate outcome where the state attorney general goes after a psychotherapist’s license and prosecutes for criminal allegations, the psychotherapist who is found guilty can find herself spending time in a jail cell.
SECTION B: 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 privacy. Confidentiality is an ethics term that imposes a duty upon the therapist 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 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 (See (Black’s Law Dictionary, 1996):
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)
Guardian holds privilege – One who has legal authority for incapacitated person (p. 282)
Conservator holds privilege – Appointed by court for incapacitated person (p. 127)
Personal representative – In the case of patient death
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.
Social Work Ethics Codes that apply to Confidentiality
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.
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) - Social Workers 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:
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:
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).
UPDATES AND ADDITIONS TO TARASOFF
“Duty to Inform”
Gross v. Allen 22 Cal.app.4th 354 (1994)
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.
“Tarasoff does not extend to suicide… or does it?”
Bellah v. Greenson, 81 Cal.App.3d 614 (1978)
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.
New Addition to Tarasoff in California –
May be Coming to Your Town, Too
Ewing v. Goldstein (2004), Cal.App.4th [No.B163112.Second Dist., Div. Eight. Jul.16, 2004]
In California, an entirely new twist in duty to warn and protect has been decided once again. It may be that other states will soon decide to take up the call, and make changes, updates, or additions to their Tarasoff laws due to this new case law decision 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:
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.
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:
MORE UPDATES AND ADDITIONS TO TARASOFF
“All foreseeable bystanders”
Hedlund v. Superior Ct of Orange Cty, 34 Cal.3d 695 (1983)
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?
“Arson is a deadly weapon.”
Peck v. Counseling Svc of Addison Cty 145 Vt.61;499 A.2n 422 (1985)
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.
“Attempt to seek past records.”
Jablonski by Pauls v. United States, 712 F.2d 398 (1983)
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.
In general, the typical breaches of confidentiality that are mandated are:
• Tarasoff / Ewing • Child Abuse • Gravely Disa • bled • 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).
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.)
Assessment for Suicide: The SAD PERSONS
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 (Patterson et al., 1983). 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 is as follows:
The beauty of the initial SAD PERSONS is that 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.
The following is a case example to practice with the SAD PERSONS assessment of suicide risk:
SAD PERSONS for Children and Adolescents
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.
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
Gender (Sex), being such a significant factor, is scored:
Male = 10 points
Additional Risk Factors
Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:
• Depression or affective disorder • Ethanol or drug abuse • Rational thinking loss • 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. SECTION C: INFORMED CONSENT
The following are 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.
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.
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, 2007).
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, 2007). 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:
• Full records be retained intact for at least 3 years after completion of services or last date of contact, whichever is later • A full record or summary of the record be maintained for an additional 12 years • Records may be disposed of no sooner than 15 years after completion of planned service or last contact, whichever is later
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.
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!
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:
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 (AB) – 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 (ad) – 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.
SECTION D: 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 (2010) 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 (ac)
(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.
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 (AE)
“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. 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:
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
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.
The following guidelines have been suggested to help determine “Why and when to 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
(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.
SECTION E: 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 at a 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 aside from an emergency situation 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
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.
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. 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, 2007). 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: List of state social work boards.
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:
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.
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. SECTION F: CHILD ABUSE
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: Child welfare state statutes.
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).
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:
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:
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).
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:
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.
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
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:
University of Miami Privacy/Data Protection Project.
The Privilege Controversy in California
Daniel v Daniel (1990) 220 Cal.App.3rd 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) SECTION G: ELDER ABUSE
The following are Federal resources related to elder abuse:
National Center on Elder Abuse
ELDER JUSTICE ACT
The Elder Justice Act does the following:
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)
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.
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.
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.
Victim assistance, “safe havens,” & 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 development of programs focusing on the special needs of at-risk elders and older victims.
Increasing prosecution – Technical, investigative, coordination, & victim assistance resources will be provided to law enforcement to support elder justice cases. Support for community policing efforts to protect at-risk elders.
Training – Training to combat elder abuse, neglect & exploitation is supported both within individual disciplines and in multidisciplinary settings (such as public health, social service, law enforcement).
Special programs to support underserved populations including rural, minority, and Native American seniors.
Model state laws & practices – A study will review state practices and laws relating to elder justice.
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
Evaluations & accountability – Provisions to determine “what works” and assure funds are properly spent.
Testimony before the U.S. 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
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. The following is a link for current information:
National Center on Elder Abuse
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.
Various Forms of Elder Abuse
The following link provides a table with a state-by-state listing of mandated reporters: http://www.rainn.org/public-policy/legal-resources/mandatory-reporting-database Check whether you are a mandated reporter in your state. For further details on state reporting laws you will need to search the Internet using the keywords: elder abuse reporting laws & state name.
Physical Elder Abuse – MANDATED REPORT
Mental Elder Abuse is PERMITTED to be reported, NOT MANDATED
Neglect of Elder – MANDATED REPORT
Exploitation or Financial Abuse of Elder – MANDATED REPORT
Self-Neglect by Elder – MANDATED REPORT
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.
Who Are Mandated Reporters
How to Report
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, (check your state for exact requirement on when and where to send written report), to the agency where the hotline recipient of your call tells you to send the written report, as follows:
Failure to Make a Report
Violation of this section may be a misdemeanor in your state. Be familiar with your state laws.
No Penalty for Good Faith Report
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.
SECTION H: 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, 2009). 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, 2009).
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, 2009)
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, 2010).
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 (2010) 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. 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):
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:
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.
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 (AF) 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, 2009).
Fisher (2009) 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 (2009) 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
REFERENCES: Section A
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.
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.
Gardner, B. (Ed.) (1996). Black’s Law Dictionary. St. Paul, MN: West Publishing Co.
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 (4th Ed.). Itasca, IL: F.E. Peacock.
National Association of Social Work. (1999). Code of Ethics.
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.
Section B: 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.
REFERENCES: Section C
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. (2007). 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.
REFERENCES: Section D
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. (2010). Ethics in Counseling and Psychotherapy: Standards, Research & Emerging Issues. Pacific Grove, CA: Brooks/Cole.
REFERENCES: Section E
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.
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