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Ethical Decision-Making: A Practical Strategy [Ethics and Risk Management]

by Frederic G. Reamer, Ph.D..


3 Credit Hours - $69
Last revised: 09/06/2018

Course content © Copyright 2018 by Frederic G. Reamer, Ph.D.. All rights reserved.



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ethics decision green 

 

This course is a shorter version of Dr. Reamer’s other course, Values and Ethics in Mental Health Practice (6CE). This course focuses more on the practical aspects of ethical-decision making and risk management (which is the latter half of the six CE course).

 

COURSE OUTLINE

 

Section One: Introduction
   Learning Objectives
   Case Illustrations

 

Section One: Ethical Decision-Making: A Practical Strategy
   A Brief Overview of Ethical Theory
     Normative Ethics
         Deontological Theories
         Teleological Theories
   The Process of Ethical Decision-Making

 

Section Two: Ethics, Risk Management and Ethical Misconduct
   The Adjudication of Mental Health Professionals
     Confidentiality and Privacy
     Delivery of Services and Boundary Violations
     Supervision of Staff
   Consultation, Referral and Records
     Deception and Fraud
     Termination of Services
     The Impaired Mental Health Practitioner

 

Section Three: Conducting an Ethics Audit

 

Section One: Introduction

 

I would like to welcome you to this unique opportunity to use distance learning to explore ethical decision-making, professional misconduct, and how to conduct an ethics audit.  I recognize that mental health professionals enroll in ethics and risk management continuing education courses for diverse reasons and with different levels of enthusiasm.  Some practitioners are keenly interested in the subject because of their direct experience with difficult ethical challenges or because of their general fascination with moral dilemmas.  Other mental health professionals enroll in ethics continuing education classes with some misgivings or reluctance – sometimes fearing that the material will be dry and mundane – and primarily because their state licensing board mandates ethics education. Whatever your reasons for enrolling in this ethics course, and whatever your level of enthusiasm, my goal is to present you with engaging material that you find useful.  My hope is that by the end of this experience you have a keener appreciation of the complexity of ethical issues encountered by mental health professionals, greater understanding of both the daunting and more routine ethical issues that arise in the field, a solid grasp of helpful resources, and concrete information to help you protect clients and yourselves. Portions of this course content draw on the author’s work found in the following:

 

Fredric G. Reamer. (2018). Social Work Values and Ethics, 5th Edition. New York: Columbia University Press.

Frederic G. Reamer. (2017). On the Parole Board: Reflections on Crime, Punishment, Redemption, and Justice. New York: Columbia University Press.

Frederic G. Reamer. (2015). Risk Management in Social Work: Preventing Professional Malpractice, Liability and Disciplinary Action. New York: Columbia University Press.

Frederic G. Reamer. (2018). Social Work Ethics Casebook: Cases and Commentary (2nd ed.). Washington, DC: NASW Press.

Frederic G. Reamer. (2018). Ethical Standards in Social Work: A Review of the NASW Code of Ethics, 3rd ed. Washington, DC: NASW Press.

Frederic G. Reamer. (2001). The Social Work Ethics Audit: A Risk-management Tool. Washington, DC: NASW Press.

Frederic G. Reamer. (2012). Boundary Issues and Dual Relationships in the Human Services. New York: Columbia University Press.

 

Learning Objectives

 

 

 

LEARNING OBJECTIVES

 

 

List the four purposes of ethical codes

 

Explain the difference between metaethics, normative ethics, and practical ethics

 

Discuss the ethics decision-making framework

 

List the six categories of malpractice, ethical misconduct or unprofessional behavior

 

 

 

Case Illustrations

 

The following cases illustrate key concepts related to ethical standards and ethical decision-making. 

 

 

Ethics Case Examples

 

 

A mental health counselor in a family service agency received a gift – a bracelet worth about $15.00 – from a long-term client who was terminating treatment.  The client spoke sincerely about how helpful the counselor was and said that the gift was a modest token of her appreciation.  How should the counselor respond to the gesture?

 

A psychologist at a community mental health center provided services to a client who disclosed that he just learned that he is HIV-positive.  The psychologist knew from prior conversations with the client that the client has been sexually involved with a woman he met in the agency’s substance abuse rehab program.  The client acknowledged that his sexual partner is not aware of the client’s HIV-positive status.  The client assured the nurse that, in time, he would share the news with his sexual partner, but the client has not taken any steps in that direction.  What is the psychologist’s responsibility?  How does the psychologist balance his commitment to the client’s privacy and duty to the client’s sexual partner, who is also an agency client?

 

A therapist in independent (private) practice is in recovery and, unexpectedly, encountered a current client at a local 12-step Alcoholics Anonymous meeting.  The client, who is at the beginning stages of recovery and wanted to observe a 12-step meeting, was accompanying a friend who regularly attends this meeting.  This location also happens to be the therapist’s “home” meeting and has been for more than seven years.  How should the therapist handle this unanticipated encounter?  Should the therapist stay at the meeting or leave?  Should the therapist speak at the meeting?

 

A school social worker provided counseling services to a 15-year-old student.  The student disclosed to the social worker that he has been experimenting with crystal meth (methamphetamines).  The student realizes he’s in over his head with drug use and is eager to enroll in a program run jointly by the school and a local agency’s federally-sponsored drug prevention and treatment program for adolescents.  However, the student refused to give the social worker permission to tell his parents about the student’s drug use.  What ethical standards and state and federal regulations and laws are relevant to this situation?  Can the social worker and her colleagues provide services to the student without the parent’s knowledge and consent?  Does the student have a right to privacy?

 

A counselor in a psychiatric hospital provided clinical services to a patient who struggled with clinical depression.  The patient had strong religious beliefs and often talked about how people who are homosexual are “going to hell.” The client also posted derogatory comments on various social networking websites. The counselor, who was gay, was deeply offended by the patient’s opinions and wanted to challenge them.  At the same time, the counselor, who had not shared his sexual orientation with the patient, knew that he must treat clients respectfully.  How should the counselor respond to the hospital patient’s statements?  How should the counselor manage his own feelings?

 

Five weeks after a family therapist began counseling a client, she discovered that the client is having an extramarital affair with the husband of one of the therapist’s closest friends.  The client is not aware of the connection.  Should the therapist terminate treatment because of the potential conflict of interest, or can she continue serving the client? 

 

A counselor’s client, a 16-year-old boy, committed suicide.  Several weeks after the boy’s death, the client’s parents telephoned the counselor and asked to meet with him.  The counselor agreed to meet with the parents.  During the conversation the parents asked to see the counselor’s case notes.  To what extent do parents of a minor client have a right to see clinical notes about their child?  To what extent does the counselor have a duty to protect the privacy of his deceased client?  What does the counselor’s code of ethics say about this kind of situation?

 

The clinical director of a residential treatment center for adolescents discovered that her boss, the agency’s executive director, had falsified data included in a program evaluation submitted to one of the center’s principal funding agencies.  The falsified data indicated that the center’s clients achieved more favorable outcomes than was actually the case.  The clinical director and executive director were good friends.  The clinical director was unsure about whether she should confront the executive director, notify the agency’s board of directors, or take some other course of action. 

 

A psychologist in a community mental health center keeps a second set of personal notes that include sensitive details that, in the psychologist’s judgment, should not appear in the agency record that is viewed by a variety of agency staff.  The psychologist received a subpoena from a lawyer who represents the client’s estranged spouse in the couple’s child custody dispute.  The lawyer wanted to see whether the psychologist’s clinical records contain information that the lawyer can use to establish that the psychologist’s client is an unfit parent.  The psychologist’s personal notes include details that could harm the client in the custody dispute.  How should the psychologist respond to the lawyer’s request for “any and all clinical records and notes”?  What steps can the psychologist take to protect the client’s privacy?

 

A pastoral counselor who worked at a church-based family service agency provided counseling to a young woman who grew up in foster care.  The client never lived with her family of origin or in an adoptive home.  The client is about to be married and invited the pastoral counselor – a key source of support over the years – to the wedding.  How should the pastoral counselor respond to the invitation?

 

A social worker in private practice counseled a client who was in an abusive relationship with her husband.  The client occasionally reported serious physical and emotional abuse.  The husband refused to participate in the counseling.  The social worker felt strongly that the client should consider leaving the marriage.  The client, however, spoke at length about how, in her culture and religion, divorce is not acceptable.  Should the social worker merely accept and respect the client’s wishes, or should the social worker encourage the client to leave her husband because of the risk of emotional and physical harm?

 

 

Experienced mental health professionals can certainly identify with these wide-ranging ethical challenges.  These circumstances certainly demand sophisticated clinical skills to help clients and others.  But, these situations also raise complex issues involving values and ethics. In fact, the values and ethical challenges in these case scenarios include four core issues in the mental health professions:

 

1.           The value base of the mental health professions

2.           Ethical dilemmas in the mental health professions

3.           Ethical decision making  

4.           Ethics risk management

 

Each of these cases raises difficult decisions about core professional values.  The various mental health professions are rooted in a fundamental set of values that ultimately shape the professions’ missions and their practitioners’ priorities and judgments. As the mental health professional in these examples, you would be concerned about several key values, including the importance of privacy, confidentiality, respect, client self-determination, integrity, professional service, clear professional and personal boundaries, and so on. Ideally, of course, the practitioners in these cases would act in accord with all these values simultaneously. What counselor or therapist would not want to respect clients’ right to self-determination and privacy, protect clients and third parties from harm, obey the law, provide services with integrity, maintain clear boundaries, and so forth?  The problem, however, is that situations sometimes arise in counseling and psychotherapy in which core values in the professions conflict, and this leads to ethical dilemmas. An ethical dilemma is a situation in which professional duties and obligations, rooted in core values, clash. This is when practitioners must decide which values – as expressed in various duties and obligations – take precedence.

 

In order to make these difficult judgments counselors and psychotherapists need to be familiar with contemporary thinking about ethical decision making.   

 

  • How does one balance one’s commitment to a client’s right to privacy when releasing sensitive information might protect a third party from harm? 

 

  • How does one reconcile conflict between a self-destructive client’s right to self-determination and the practitioner’s duty to protect the client from injury? 

 

  • How does a practitioner provide critically important emotional support to a client without violating professional boundaries?

 

The phenomenon of ethical decision making in mental health has matured considerably in recent years.  Practitioners trained today have far more access to helpful literature and concepts related to ethical decision making than did their predecessors. Finally, practitioners must be concerned about the risk-management consequences of their ethical decisions and actions, particularly the possibility of professional malprac­tice and misconduct. 

 

  • Is it acceptable for a mental health practitioner knowingly and willingly to violate a widely held ethical standard, whatever the motive?

 

  • What consequences should there be for a practitioner who does not act in a client’s best interests?

 

  • What legal risks -- in the form of criminal penalties, ethics complaints, formal adjudication by ethics disciplinary committees or state licensing boards, and lawsuits -- do counselors and psychotherapists face as a result of their actions?

 

Only recently – considering the length of time that the various mental health professions have existed – have these professions devoted substantial attention to the subject of ethical dilem­mas. Especially since the early 1980s, the increase in education, training, and scholarship on the subject has been significant. One key trend in professional education and training is to introduce students and practitioners to ethical theories and principles that may help them analyze and resolve ethical dilemmas. These include theories and principles of what moral philoso­phers call metaethics, normative ethics, and practical (also called applied) ethics.

 

Metaethics.  Briefly, metaethics concerns the meaning of ethical terms or language and the derivation of ethical principles and guidelines. Typical metaethical questions include the meaning of the terms right and wrong and good and bad. What criteria should we use to judge whether someone has engaged in unethical conduct? How should we go about formulating ethical principles to guide individuals who struggle with moral choices?   Normative ethics attempts to answer the question, “Which general moral norms for the guidance and evaluation of conduct should we accept and why?”  Practical (or applied) ethics is the attempt to apply ethical norms and theories to specific problems and contexts, such as professions, organizations, and public policy.

 

With respect to metaethics, some philosophers, known as cognitivists, believe that it is possible to identify objective criteria for determining what is ethically right and wrong, or good and bad. Others, however, question whether this is possible. These so-called noncognitivists argue that such criteria are necessarily subjective, and any ethical principles we create ultimately reflect our biases and personal preferences.

 

Like philosophers, mental health professionals disagree about the objectivity of ethical principles. Some, for example, believe that it is possible to establish universal principles upon which to base ethical decisions and practice, perhaps in the form of a sanctioned code of ethics or “God-given” tenets. Proponents of this point of view are known as absolutists. Others – known as relativistsreject this point of view, arguing instead that ethical standards depend on cultural practices, political climate, contemporary norms and moral standards, and other contextual considerations.

 

The popularity of relativism and absolutism has waxed and waned through­out the ages. Belief in absolutism has generally coincided with belief in the dogmas of orthodox religion; absolutism has tended to fade, with accompanying increases in the popularity of relativism, during times of widespread religious skepticism. However, recent years have seen a declining tolerance for relativism and a wish for ethical standards that would serve as clear moral guides for individuals who face complex ethical dilemmas. This is especially true in some of the mental health professions that embrace a number of “bottom line” values, such as nondiscrimination, social justice, respect for the dignity of persons, and professional integrity.   As we shall see shortly, over time the ethical standards in the mental health professions have become clearer, more precise, and comprehensive.

 

A Brief Overview of Ethical Theory

 

Normative ethics. In contrast to metaethics, which is often abstract, normative ethics tends to be of special concern to mental health professionals because of its immediate relevance to practice. Normative ethics consists of attempts to apply ethical theories and principles to actual ethical dilemmas. Such guidance is especially useful when practitioners face conflicts among duties they are ordinarily inclined to perform.

 

Theories of normative ethics are generally grouped under two main head­ings. Deontological theories (from the Greek deontos, ‘of the obligatory’) are those that claim that certain actions are inherently right or wrong, or good and bad, without regard for their consequences. Thus a deontologist -- the best known is Immanuel Kant, the eighteenth-century German philosopher -- might argue that telling the truth is inherently right, and thus mental health practitioners should never lie to clients, even if it appears that lying might be more beneficial to the parties involved. The same might be said about keeping promises made to colleagues, upholding contracts with managed care organizations and insurance companies, obeying a mandatory reporting law (related to child or elder abuse and neglect, for example), and so on. For deontologists, rules, rights, and principles are sacred and inviolable. The ends do not necessarily justify the means, particularly if they require violating some important rule, right, principle, or law.

 

One well-known problem with this deontological perspective is that it is often easy to imagine conflicting arguments that use similar language about inherently right (or wrong) actions. Thus one can imagine a deontologist who argues that all human beings have an inherent right to life and that it would be immoral for a mental health counselor to be involved in an act of assisted suicide, for example, with a client who is gravely ill and wants to end his life. However, another deontologist might argue that counselors have an inherent obligation to respect clients’ right to self-determination so long as the actions involved are voluntary and informed and that it therefore is permissible for counselors to be involved in an act of assisted suicide.  Similarly, one deontologist might argue that it would be unethical, because of her belief in the inherent sacredness of all lives, for a mental health counselor to provide pregnant clients with any information about abortion options, while another deontologist might argue that counselors have an inherent moral duty to honor clients’ right to self-determination when they ask for information about abortion options.

 

The second major group of theories, teleological theories (from the Greek teleios, ‘brought to its end or purpose’), takes a different approach to ethical choices. From this point of view, the rightness of any action is determined by the goodness of its consequences. Teleologists think it is naive to make ethical choices without weighing potential consequences. To do otherwise is to engage in what the philosopher Smart referred to as “rule worship.” Therefore, from this perspective (sometimes known as consequentialism), the responsible strategy entails an attempt to anticipate the outcomes of various courses of action and to weigh their relative merits.

 

There are two major teleological schools of thought: egoism and utilitari­anism. Egoism is a form of teleology that is not typically found in the mental health professions, since practitioners tend to be altruistic; according to this point of view, when faced with conflicting duties people should maximize their own good and enhance their self-interest.

 

In contrast, utilitarianism, which holds that an action is right if it promotes the maximum good, has historically been the most popular teleological theory and has, at least implicitly, served as justification for many decisions made by mental health practitioners. According to the classic form of utilitarianism – as originally formulated by the English philosophers Jeremy Bentham in the eighteenth century, and John Stuart Mill in the nineteenth century – when faced with conflicting duties one should do that which will produce the greatest good.  In principle, then, a practitioner should engage in a calculus to determine which set of consequences will produce the greatest good. Thus, a utilitarian might argue that violating a client’s right to confidentiality in order to protect a third party from harm is justifiable in order to bring about a greater good. 

 

One problem with utilitarianism is that this framework, like deontology, sometimes can be used to justify competing options. Some philosophers argue that it is important and helpful to distinguish between act and rule utilitarianism – a distinction that I find particularly relevant in the mental health professions. According to act utili­tarianism, the rightness of an action is determined by the goodness of the consequences produced in that individual case, or by that particular act. One does not need to look beyond the implications of this one instance. By contrast, rule utilitarianism takes into account the long-term consequences likely to result if one generalizes from the case at hand or treats it as a precedent. A good illustration of the distinction between act and rule utilitarianism concerns the well-known mandatory reporting laws related to child abuse and neglect. According to these statutes, now found in every state in the United States, mental health practitioners and other mandated reporters are required to notify child welfare or protective service authorities whenever they suspect child abuse or neglect.  Circumstances sometimes arise that lead practitioners to conclude that a client’s best interests would not be served by complying with the mandatory reporting law. In these instances, practitioners believe that more harm than good would result if they obeyed the law. What these practitioners are claiming, at least implicitly, is that it is permissible to violate a law when it appears that greater good would result.

 

This is a classic example of act utilitarianism. An act utilitarian might justify violating a mandatory reporting law if it can be demonstrated convincingly that this would result in greater good (for example, if the practitioner is able to show that she would not be able to continue working with the family if she reported the suspected abuse or neglect and that her continuing to work with the family offers the greatest potential for preventing further neglect or abuse). A rule utilitarian, however, might argue that the precedent established by this deliberate violation of the law would generate more harm than good, regardless of the benefits produced by this one particular violation. A rule utilitarian might argue that the precedent established by this case might encourage other practitioners to take matters into their own hands rather than report suspected abuse or neglect to local protective service officials and that this would, in the long run, be more harmful than helpful.

 

A noteworthy problem with utilitarianism, then, is that different people are likely to consider different factors and weigh them differently, as a result of their different life experiences, values, education, political ideologies, and so on. In addition, when taken to the extreme, classic utilitarianism can justify trampling on the rights of a vulnerable minority in order to benefit the majority. In principle, a callous utilitarian practitioner (let’s hope no such person exists) could argue that policies that protect the civil rights of mentally ill people (for example, extensive competency evaluations before involuntary commitment) are too costly, especially when compared to the costs and benefits of simply removing “public nuisances” from the streets. In light of countless instances throughout history in which the rights of minorities and other oppressed groups have been insensitively violated to benefit the majority, practitioners have good reason to be concerned about such strict applications of utilitarian principles.

 

Two other ethical theories have important implications for mental health practitioners: communitarianism (also known as community-based theory) and the ethics of care.  According to communitarianism, ethical decisions should be based primarily on what is best for the community and communal values (the common good, social goals, and cooperative virtues) as opposed to individual self-interest.  The ethics of care, in contrast, reflects a collection of moral perspectives more than a single moral principle.  This view emphasizes the importance in ethics and moral decision making of the need to care for, and willingness to act on behalf of, persons with whom one has a significant relationship.  For practitioners this perspective emphasizes the critical importance of their commitment to their clients.

       

One of the enduring challenges in mental health is that practitioners will not always agree on the applicability of different theoretical perspectives and about the rank-ordering of conflicting values and duties. Practitioners can have reasonable differences of opinion about which values and obligations – for example, related to client confidentiality, protection of third parties, informed consent, and conflicts of interest – ought to weigh more heavily. Having said this, I should also acknowledge that in many instances practitioners will agree about the ranking of competing values or duties. Although exceptions will always exist in the hard cases, which duties should take prece­dence when they conflict is often clear.

 

The Process of Ethical Decision Making

 

There is no simple, tidy formula for resolving ethical dilemmas.  By definition, ethical dilemmas are complex.  In the first section of this course I shared a number of ethical dilemmas that might lead to disagreement among mental health professionals.  That is, reasonable, thoughtful practitioners can disagree about the ethical principles and standards that ought to guide ethical decisions in any given case. But ethicists generally agree that it is important to approach ethical decisions systematically, to follow a series of steps to ensure that all aspects of the ethical dilemma are addressed. By following a series of clearly formulated steps, practitioners can enhance the quality of the ethical decisions they make and the likelihood that they will protect clients, third parties, and themselves. In my experience, it is helpful for mental health professionals to follow the steps in Table 1 when attempting to resolve ethical dilemmas.

 

 

Table 1. The Ethics Decision-Making Framework

 

 

Identify the ethical issues, including the values and duties that conflict.

 

Identify the individuals, groups, and organizations likely to be affected by the ethical decision.

 

Tentatively identify all viable courses of action and the participants involved in each, along with the potential benefits and risks for each.

 

Thoroughly examine the reasons in favor of and opposed to each course of action, considering relevant:

 

Ethical theories, principles, and guidelines (for example, deontological and teleological-utilitarian perspectives and ethical guidelines based on them).

 

 Codes of ethics and legal principles.

 

 Practice theory, principles, and national standards in the mental health professions.

 

Personal values (including religious, cultural, and ethnic values and political ideology), particularly those that conflict with one’s own.

 

Consult with colleagues and appropriate experts

 

 

More specifically, when I encounter an ethical dilemma I find it helpful to identify every possible ethical issue that warrants attention.  Sometimes I will skim lists of ethical issues in the profession to be sure I haven’t missed anything.  I try to identify every individual, group, and organization that might be affected by my ethical decision.  Possibilities include clients, clients’ family members and acquaintances, neighborhood residents, community and religious groups, clients’ employers, public and private agencies, and practitioners and their employers.  I also think through every possible course of action I can imagine, along with their possible consequences.  Only then do I consider the arguments for and against different courses of action, based on ethical theories, principles, guidelines, and standards; practice theory and principles in the mental health professions; relevant laws and regulations; and my personal values.

 

Ordinarily, mental health professionals should not make ethical decisions alone. This is not to suggest that ethical decisions are always group decisions. Sometimes they are, but in many instances individual practitioners ultimately make the decisions once they have had an opportunity to consult with colleagues and appropriate experts.

Typically, practitioners should consider consulting with colleagues who are involved in similar work and who are likely to understand the issues – supervisors, agency administrators, attorneys, and ethics experts. Sometimes this consultation may be obtained informally, in the form of casual and spon­taneous conversation with colleagues, and sometimes, particularly in agency settings, through more formal means, such as with institutional ethics commit­tees.

 

The concept of institutional ethics committees (IECs) emerged most promi­nently in 1976, when the New Jersey Supreme Court ruled that Karen Ann Quinlan’s family and physicians should consult an ethics committee in decid­ing whether to remove her from life-support systems (although a number of hospitals have had something resembling ethics committees since at least the 1920s). The court based its ruling in part on an important article that appeared in the Baylor Law Review in 1975, in which a pediatrician, Karen Teel, advocated the use of ethics committees when health care professionals face difficult ethical choices.

 

Ethics committees, which can include representatives from various disci­plines, often provide case consultation in addition to education and training. A large percentage of agency-based ethics committees provide nonbinding ethics consultation and can offer an opportunity for practitioners to think through case-specific issues with colleagues who have knowledge of ethical issues as a result of their experiences, familiarity with relevant ethical concepts and literature, or specialized ethics training. Although IECs are not always able to provide definitive opinions about the complex issues that are frequently brought to their attention (nor should they be expected to), they can provide a valuable forum for thorough and critical analyses of difficult ethical dilemmas.

 

There are two important reasons for obtaining consultation. The first is that experienced and thoughtful consultants may offer useful insights concerning the case and may raise issues the practitioner had not considered. I think there is something to the expression “two heads are better than one.” 

 

The second reason is that such consultation may help practitioners protect themselves if they are sued or have complaints filed against them because of the decisions they make. Practitioners who seek consultation demonstrate that they approached the decision carefully and prudently, and this can help if someone alleges that the practitioner made an inappropriate decision hastily and carelessly.

 

Once the practitioner has carefully considered the various ethical issues, including the professional values and duties that conflict; identified the indi­viduals, groups, and organizations that are likely to be affected by the ethical decision; tentatively identified all viable courses of action and the participants involved in each, along with the potential benefits and risks for each; thoroughly examined the reasons in favor of and opposed to each course of action (con­sidering relevant ethical theories, principles, and guidelines; codes of ethics; practice theory, principles, and national standards in the mental health professions; and personal values); and consulted with colleagues and appropriate experts, it is time to make a decision. In some instances, the decision will seem clear. Going through the decision-making process will have clarified and illuminated the issues so that the mental health practitioner’s ethical obligation seems unambiguous.

 

In other instances, however, practitioners may still feel somewhat un­certain about their ethical obligation. These are the hard cases and are not uncommon in ethical decision making. After all, situations that warrant full-scale ethical decision making, with all the steps that this entails, are, by definition, complicated. If they were not complex, these situations could have been resolved easily and simply at an earlier stage. Thus, it should not be surprising that many ethical dilemmas remain controversial even after practitioners have taken the time to examine them thoroughly and systematically. Such is the nature of ethical dilemmas.

 

This is similar to what occurs in mental health professionals’ discussions of complicated, controversial clinical cases.  No one expects all clinical practitioners to agree on a treatment plan when faced with an especially complicated case, particularly if the practitioners draw on different theoretical perspectives, personal and professional experiences, political ideologies, and so on. One should expect no different when the focus is on an ethical dilemma. What clients and other affected parties have a right to expect is that practitioners involved in the decision will be thorough, thoughtful, sensitive, and fair.

 

Once the decision is made, practitioners should always be careful to document the steps involved in the decision-making process. Ethical decisions are just as much a part of professional practice as clinical interventions, and they should become part of the record. This is simply sound professional practice. Both the counselor involved in the case and other practitioners who may become involved in the case may need access to these notes at some time in the future.

 

In addition, it is extremely important to prepare notes on the ethical decision-making process in the event that the case results in an ethics complaint or legal proceedings (for example, a complaint filed against the practitioner). As mentioned earlier, carefully written notes documenting the practitioner’s diligence can protect the practitioner from allegations of misconduct, malpractice, or negligence.

 

Mental health professionals need to decide how much detail to include in their doc­umentation. Too much detail can be problematic, particularly if the practitioner’s records are subpoenaed. Sensitive details about the client’s life and circumstances may be exposed against the client’s wishes. At the same time, practitioners can encounter problems if their documentation is too brief and skimpy, especially if the lack of detail affects the quality of care provided in the future or by other professionals. In short, practitioners need to include the level of detail that facilitates the delivery of service without exposing clients unnecessarily, consistent with generally accepted standards in the profession.

 

In addition, practitioners should always pay close attention to, and evaluate the consequences of, their ethical decisions. This is important in order to be accountable to clients, employers, and funding sources and, if necessary, to provide documentation in the event of an ethics complaint, malpractice claim, or lawsuit. This may take the form of routine case monitoring, consultation with colleagues or an ethics committee, or more extensive evaluation using the variety of research tools now available to practitioners.

 

It would be a mistake to assume that systematic ethical decision-making will always produce clear and unambiguous results. Practitioners’ different theoretical perspectives, personal and professional experi­ences, educational backgrounds, values, and biases will inevitably combine to produce differing points of view. This is just fine, particularly if we are confident that sustained dialogue among practitioners about the merits of their respective views is likely to enhance their understanding and insight. As in all other aspects of clinical work in the mental health professions, the process is often what matters most.

 

In this section I examined the nature of ethical decision-making and introduced a framework that you may find useful when you encounter an ethical dilemma.  I now turn to a more detailed discussion and analysis of ethics-related risk management issues in the mental health professions.

 

Section TWO

 

Ethics, Risk-management and Ethical Misconduct

 

Many ethical issues that practitioners encounter raise difficult moral choices – for example, whether practitioners are always obligated to be truthful and to respect clients’ right to self-determination, protect clients’ privacy and confidentiality, and avoid social contact with former clients.  Many of these ethical issues do not raise legal questions or issues that would warrant discipline by a regulatory body, such as a state licensing board, or a professional body.  For example, whether a particular practitioner ought to be entirely truthful in response to a client’s query about the practitioner's own substance abuse history does not involve legal questions or questions of misconduct. Instead, this sort of ethical dilemma is more likely to involve ethical issues in their most innocent form, that is, ethical issues requiring thoughtful deliberation and application of sound ethical principles. The same holds for practitioners' decisions about accepting gifts or social invitations (for example, wedding and graduation invitations) from clients. These are the issues about which reasonable practitioners may disagree.

 

However, some ethical issues in mental health involve complex legal and risk-management issues. They raise questions about ethical misconduct and wrongdoing of a sort that may constitute violations of the law, professional codes of ethics and standards, and publicly enacted regulations. These are cases that occasionally result in lawsuits, ethics complaints, or criminal charges filed against practitioners.

 

In this section of the course I discuss various examples of unethical behavior or pro­fessional misconduct. Some cases involve genuine mistakes practitioners may make that lead to allegations of unethical behavior or professional misconduct. Examples include practitioners who simply forget to obtain clients’ consent before sharing confidential records with third parties, provide counseling after neglecting to renew their license, and inadvertently bill insurance companies for services that were not rendered. These are cases in which practitioners do not intend to harm or defraud anyone; rather, these are cases in which practitioners unintentionally make mistakes that injure someone or some organization. The injury is sufficiently serious that the injured party charges the practitioner with some form of unethical behavior or professional misconduct.

 

In contrast, other cases are related to the ethical dilemmas I discussed in earlier sections of the course, situations where professionals face difficult ethical decisions and do their best to handle them responsibly. These practitioners may be remarkably conscientious in the way they go about making the ethical decision. They may review relevant literature, consult with colleagues and supervisors who have expertise in the subject, document their decision making, and so on. What may happen despite this thoroughness and diligence, however, is that some individual or organization may allege that the practitioner mishandled the case and acted unethically. Some party may file a lawsuit or ethics complaint alleging that the practitioner violated prevailing ethical standards in her or his profession and that some sort of injury resulted. An example is a psychologist or counselor who has to decide whether to disclose confidential information about a client who is HIV positive in order to protect the client’s lover, who is not aware of her lover’s HIV-positive status. The practitioner has to choose between the client’s right to confidentiality and the practitioner’s obligation to protect a third party from harm. It is not hard to imagine that a practitioner in this predicament might be sued or have a complaint filed against her no matter what course of action she takes. If she respects her client’s right to confidentiality and the client’s lover subsequently becomes infected, the client’s lover might sue or file an ethics complaint against the practitioner alleging that the practitioner failed to protect her from serious harm. Conversely, if the practitioner discloses the confidential information, without the client’s permission, in order to protect the client’s lover from harm, the client might sue or file an ethics complaint against the practitioner alleging that the practitioner violated the client’s right to confidentiality. Thus in some cases, even the most conscientious, thoughtful, and prudent mental health practitioners can face a complaint alleging ethical misconduct or unprofessional behavior.

 

In addition, some cases involve allegations that a practitioner engaged in gross professional misconduct and knowingly harmed a client or some other party. These are not the cases in which practitioners inadvertently make harmful mistakes or make difficult ethical decisions in a responsible manner but in a way that triggers an ethics complaint or lawsuit. Rather, these involve allegations that practitioners willfully and knowingly violated individuals’ rights. Examples include practitioners who become sexually involved with clients, extort money from clients, exchange intimate online messages with clients, falsify clinical notes, and commit fraud against insurance companies.  Occasionally these cases may also result in criminal charges.

 

The Adjudication of Mental Health Professionals

 

Practitioners are held accountable for professional misconduct in three promi­nent ways. These include:

 

  • Ethics complaints filed against members of professional organizations (such as the AAMFT, APA, AMHCA, ACA and NASW)

 

  • Ethics complaints filed with state licens­ing or regulatory boards

 

  • Lawsuits filed against practitioners

 

In addition, criminal charges may be filed against practitioners, although this is relatively rare. In general, ethics complaints filed against mental health practitioners cite a wide variety of the professions’ ethical standards, including those related to confidentiality, privacy, privileged communication, informed consent, sexual misconduct, dual relationships, conflicts of interest, practitioners’ relationships with col­leagues, and delivery of services.

 

Ethics complaints filed against practitioners with a professional organization to which they belong are ordinarily processed using a peer review model. A common model includes a hearing during which the complainant (the person filing the complaint), the respondent (the person against whom the complaint is filed), and witnesses have an opportunity to testify. After hearing all parties and dis­cussing the testimony, the hearing panel presents a report that summarizes its findings and presents its recommendations. Recommendations may include sanctions or various forms of corrective action, such as suspension from the professional organization, mandated supervision or consultation, censure in the form of a letter, restitution, or instructions to send the complainant a letter of apology. In some cases, the sanction may be publicized through local and national newsletters or general circulation newspapers. In some cases, particularly matters that do not involve allegations of extreme misconduct, a professional organization offers complainants and respondents the opportunity for mediation rather than more formal adjudication.

 

State legislatures also empower licensing or regulatory boards to process ethics complaints filed against mental health professionals. Ordinarily, these boards appoint a panel of colleagues to review the complaint and, if necessary, conduct a hearing.  Licensing and regulatory bodies use formal procedures to process and adjudicate complaints and can impose various sanctions (for example, probation or license suspension or revocation) or requirements for corrective action. In addition, growing numbers of mental health practitioners have been named in lawsuits alleging some form of ethical misconduct or malpractice. This trend is clearly reflected in liability claims filed against practitioners.

 

Claims filed against mental health practitioners tend to fall into two broad groups. The first includes claims that allege that practitioners carried out their duties improperly or in a fashion inconsistent with their profession’s standards (often called acts of commission or of misfeasance or malfeasance). Examples include improper treatment of a client (for example, using an unorthodox treatment technique or one for which one has not received proper training), sexual misconduct, breach of client confidentiality, wrongful removal of a child from a home, assault and battery, improper peer review, and improper termination of services.

 

The second broad category includes claims that allege that practitioners failed to perform a duty that they are ordinarily expected to perform, according to the profession’s standards (known as acts of omission or nonfeasance). Examples include failure to obtain a client’s informed consent before releasing confidential information or providing online counseling, prevent a client’s suicide, be available when needed, protect third parties from harm, supervise a client properly, and refer a client for consultation or treatment by a specialist.

 

Of course, not all claims filed against mental health practitioners are substantiated. Some claims are frivolous, and others lack the evidence necessary to demonstrate malpractice and negligence. However, many claims are substantiated, ultimately costing practitioners considerable expense and emotional anguish (although malpractice insurance coverage helps to ease the financial burden).

 

Mental health practitioners must know what kinds of professional misconduct or un­ethical behavior constitute malpractice. Malpractice is a form of negligence that occurs when a practitioner, or any other professional, acts in a manner incon­sistent with the profession’s standard of carethe way a reasonable and prudent professional, with comparable education and training, would act under the same or similar circumstances.

 

Lawsuits and liability claims that allege malpractice are civil suits, in contrast to criminal proceedings. Ordinarily, civil suits are based on tort or contract law, with plaintiffs (the individuals bringing the suit) seeking some sort of compensation for injuries they claim to have incurred.  These injuries may be economic (for example, lost wages or medical expenses), physical (for instance, as a result of an assault by a person the practitioner was supposed to have been supervising), or emotional (for example, depression that may result from a practitioner’s sexual contact with a client).

 

As in criminal trials, defendants in civil lawsuits are presumed to be innocent until proved otherwise. In ordinary civil suits, defendants will be found liable for their actions based on the standard of preponderance of the evidence, as opposed to the stricter standard of proof beyond a reasonable doubt used in criminal trials. In some civil cases – for example, those involving contract disputes – the court may expect clear and convincing evidence, a standard of proof that is greater than preponderance of the evidence but less than for beyond a reasonable doubt.

 

In general, malpractice occurs when there is evidence for the four criteria found in Table 8.  

 

 

Table 2. The Basis for Malpractice

 

 

(1) at the time of the alleged malpractice a legal duty existed between the practitioner and the client (for example, a counselor has a duty to keep information shared by a client confidential by virtue of their professional-client relationship);

 

(2) the practitioner was derelict in that duty, either through an action that occurred or through an omission (confidential information about a client’s alcohol use was divulged to the client’s employer without the client’s permission);

 

(3) the client suffered some harm or injury (the client alleges that he was fired from his job because the counselor inappropriately divulged confidential information to the client’s employer); and

 

(4) the harm or injury was directly and proximately caused by the counselor’s dereliction of duty (the client’s dismissal was the direct result of the counselor’s unauthorized disclosure of confidential information).

 

 

Six broad categories of cases involve malpractice, ethical misconduct, or unprofessional behavior:

 

  • confidentiality and privacy
  • delivery of services and boundary violations
  • supervision of clients and staff
  • consultation, referral, and records
  • deception and fraud
  • termination of service

 

Confidentiality and Privacy

 

Earlier I discussed ethical dilemmas related to confidentiality. In those cases, practitioners had to decide how to handle the disclosure of confidential information to protect third parties or clients from harm, to protect or benefit clients in response to a court order, and to satisfy requests from parents or guardians concerning minor children. My discussion focused on the process of ethical decision making rather than the possibility of ethical misconduct in the form of inappropriate disclosure of confidential information. Mental health practitioners can be charged with misconduct if they violate clients’ right to confidentiality. Codes of ethics in the mental health professions include many specific standards pertaining to confidentiality (Table 3):

 

 

Table 3. Standards Pertaining to Confidentiality

 

 

Clients’ right to privacy

 

Informed consent required for disclosure

 

Protection of third parties from harm

 

Notification of clients when practitioners expect to disclose confidential information

 

Limitations of clients’ right to confidentiality

 

Confidentiality issues in the delivery of services to families, couples, and small groups

 

Disclosure of confidential information to third-party payers, the media, and during legal proceedings

 

Protection of the confidentiality of written and electronic records and information transmitted to other parties through the use of electronic tools such as computers, electronic mail, text messages, fax machines, and telephones

 

Proper transfer and disposal of confidential records

 

Protection of confidential information during teaching, training, supervision, and consultation

 

Protection of the confidentiality of deceased clients

 

 

Mental health practitioners should acquaint themselves with relevant federal and state statutes and regulations, agency policies, and practice principles related to each of these situations.  Practitioners should pay particular attention to federal guidelines related to the confidentiality of substance use disorder treatment, school records, and electronically stored and transmitted communication.  Key guidelines pertain to the release of confidential information pertaining to alcohol and substance abuse treatment (42 C.F.R. 2-1 ff., "Confidentiality of Substance Use Disorder Patient Records").  These regulations broadly protect the confidentiality of substance use disorder program records -- with respect to the identity, diagnosis, prognosis, or treatment of any client -- maintained in connection with the performance of any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research that is conducted, regulated, or directly or indirectly assisted by any federal department or agency.  Disclosures are permitted (1) with the written informed consent of the client, (2) to medical personnel in emergencies, (3) for research, evaluation, and audits, and (4) by court order for good cause.

       

Practitioners employed in educational settings should be very familiar with FERPA regulations.  The Family Educational Rights and Privacy Act (also known as the Buckley/Pell Amendment, 20 U.S.C. §1232g) specifies the conditions for student and parent access to educational records; the procedures for challenging and correcting inaccurate educational records; and requirements for the release of educational records or identifying information to other individuals, agencies, or organizations.  The act covers educational institutions and agencies, public or private, which receive federal funds.  It spells out instances when educational records may be released without written consent of a parent or guardian, for example, release to school officials and teachers who have a legitimate educational interest; for financial aid, audit, and research purposes; and in emergencies if disclosure of information in the record is necessary to protect the health or safety of students or other persons.

       

Practitioners must also be very familiar with provisions in the Health Insurance Portability and Accountability Act (HIPAA).  In 1996 Congress enacted HIPAA in response to increasing costs associated with transmitting health records lacking standardized formatting across providers, institutions, localities, and states.  HIPAA has three components: (1) privacy standards for the use and disclosure of individually identifiable private health information; (2) transaction standards for the electronic exchange of health information; and (3) security standards to protect the creation and maintenance of private health information.  The various HIPAA rules standardize the format of electronically transmitted records; secure the electronic transaction and storage of individually identifiable health information; limit the use and release of individually identifiable information; increase client control of use and disclosure of private health information; increase clients' access to their own records; establish legal accountability and penalties for unauthorized use and disclosure and violation of transaction and security standards; and identify public health and welfare needs that permit use and disclosure of individually identifiable health information without client authorization.

 

A particularly important confidentiality issue pertains to mental health professionals’ duty to protect third parties from harm inflicted by clients.  The famous Tarasoff case and various other “duty to protect” cases that have been litigated since then have helped to clarify the delicate balance between practitioners’ obligation to respect clients’ right to confidentiality and their simultaneous duty to protect third parties from harm. Although some court decisions in these cases are contradictory and inconsistent with one another, in general four conditions should be met to justify disclosure of confidential information to protect third parties from harm and these can be seen in Table 4.

 

 

Table 4.  Duty to Protect

 

 

The practitioner should have evidence that the client poses a threat of violence to a third party. Although court decisions have not provided precise definitions of violence, the term ordinarily implies the use of force – such as with a gun, knife, or other deadly weapon – to inflict injury.

 

The practitioner should have evidence that the violent act is fore­seeable. The practitioner should be able to present evidence that suggests significant risk that the violent act will occur. Although courts recognize that clinicians cannot always predict violence accurately, they should expect to have to demonstrate that they had good reasons for believing that their client was likely to act violently.

 

The practitioner should have evidence that the violent act is imminent. The practitioner should be able to present evidence that the act was impending or likely to occur relatively soon. Imminence may be defined differently by different practitioners in different circumstances; some practitioners think imminence implies a violent incident within minutes, whereas others think in terms of hours or days. In light of this difference of professional opinion, it is important for practitioners to be able to explain their definition and interpretation of imminence should they have to defend their decision regarding the disclosure of confidential information.

 

Many, although not all, court decisions imply that a practitioner must be able to identify the probable victim. A number of courts have ruled that practitioners should have specific information about the parties involved, including the potential victim’s identity, in order to justify disclosure of confidential information against the client’s wishes. However, other courts have not required evidence of an identifiable potential victim. Practitioners should consult the relevant language in their codes of ethics and state laws.

 

 

It is very important for mental health clinicians to inform clients at the beginning of their relationship about the limits of confidentiality.  Clients have the right to know what information they share with a counselor might have to be disclosed to others against clients’ wishes (for example, evidence of child abuse or neglect, or of a client’s threat to harm a third party).

 

Clinicians who are involved in group treatment, or who provide counseling services to couples and families, must be particularly aware of confidentiality issues. For example, clinicians disagree about the extent to which couples and family members have a right to expect that information they share in therapy will not be disclosed to others. Although clinicians can encourage others involved in treatment to respect a particular individual’s wish for privacy, there is considerable debate about the limits of confidentiality in these contexts. Some practitioners believe, for example, that those involved in couples or family counseling should not have the right to convey secrets to the practitioner that will not be shared with others involved in the treatment (for example, family members, spouse, or partner). Other practitioners, however, believe that secrets can be appropriate and in some cases can actually enhance the effectiveness of treatment (for example, when the disclosure of a man’s extramarital affair would only undermine the substantial progress being made by him and his wife). At a minimum, mental health professionals should inform clients of their obligation to respect the confidentiality of information shared by others in family, couples, or group counseling and of the practitioners’ or agencies’ poli­cies concerning the handling of confidential information that participants share with social workers.  For example, the NASW Code of Ethics (2017) states:

 

  • When social workers provide counseling to families, couples, or groups, social workers should seek agreement among the parties involved con­cerning each individual’s right to confidentiality and obligation to preserve the confidentiality of information shared by others. This agreement should include consideration of whether confidential information may be exchanged in person or electronically, among clients or with others outside of formal counseling sessions. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements. (standard 1.07[f])

 

  • Social workers should inform clients involved in family, couples, marital, or group counseling of the social worker’s, employer’s, and agency’s pol­icy concerning the social worker’s disclosure of confidential information among the parties involved in the counseling. (standard 1.07[g])

 

Many confidentiality problems occur when practitioners are simply absentminded, careless, or sloppy. Examples include practitioners who talk about clients in agency waiting rooms, elevators, hallways, or restaurants while in the presence of others; leave confidential documents on top of their desks or in a photocopy machine such that others can see them; do not dispose of confidential information properly; fail to encrypt sensitive electronic information; and so on. In these cases, the practitioners involved mean no harm. They simply make mistakes, ones that may be costly.

 

Mental health professionals can take a number of steps to prevent these mistakes or at least minimize the likelihood that they will occur. Practitioners should be sure to train all agency staff members, including all professional staff and nonprofessional staff (for example, secretaries, clerical workers, custodians, cooks) concerning the concept of confidentiality, the need to protect confidentiality (including electronically stored information), and common ways that confidentiality can be violated. Training should cover the need to protect confidential information contained in written and electronic records and documents from inappropriate access by parties outside the agency (for example, other human service professionals, insurance companies, clients’ family members, and guardians) and by other staff members within the agency who have no need to know the confidential information. All agencies should have clear policies governing access to confidential information by third parties and clients themselves.

 

Staff should also be trained about inappropriate release of confidential information through verbal communication. Practitioners and other staff members in social service agencies need to be careful about what they say in hallways and waiting rooms, on elevators, in restaurants and other public facilities, on answering machine messages, and over the telephone to other social service professionals, clients’ family members and friends, and representatives of the news media.

 

In addition, practitioners should prepare clear written explanations of their agency’s confidentiality guidelines. These should be shared with every client (many agencies ask clients to sign a copy acknowledging that the guide­lines were shared with them and that they understand the guidelines).

 

To understand the limits of privacy and confidentiality practitioners must be familiar with the concept of privileged communication. The right of privileged communication ordinarily means that a professional cannot disclose confidential information during legal proceedings without the client’s consent or a court order. Among professionals, the attorney-client relationship was the first to be granted the right of privileged communication. Over time other groups of professionals, such as social workers, physicians, psychiatrists, psychologists, counselors, and clergy, sought legislation to provide them with this right.

 

Whereas confidentiality refers to the professional norm that information shared by or pertaining to clients should not be shared with third parties, the concept of privilege refers specifically to the disclosure of confidential information in legal proceedings. Many states and the federal courts now grant mental health counselors’ clients the right of privileged communication, which means that practitioners cannot disclose privileged information in court without clients’ consent. Practitioners must understand, however, that privileged communi­cation statutes do not guarantee that they will never be required to disclose information without clients’ consent. In fact, despite a privileged communication statute, a court of law could formally order a clinician to reveal this information if the judge believed that it was essential to a case being tried. Judges use widely embraced legal standards to decide whether they should order the disclosure of privileged information.

 

Delivery of Services and Boundary Violations

 

A substantial portion of claims filed against mental health professionals allege some kind of misconduct related to the delivery of services. These services take various forms – such as individual psychotherapy, family treatment and couples coun­seling, casework, group counseling, online communications (including social networking sites), program administration, and research – and are delivered in a wide variety of settings, including public and private human service agencies.

 

Claims alleging improper delivery of services raise various issues, in­cluding problems with informed consent procedures, practitioner competence, client assessment and intervention, undue influence, suicide, civil commitment proceedings, pro­tective services, defamation of character, and boundary violations (including sexual contact with clients).

 

The concept of informed consent has always been prominent in the mental health professions. Consistent with practitioners’ long-standing embrace of the principle of client self-determination, informed consent procedures require clinicians to obtain clients’ permission before releasing confidential information to third parties; allowing clients to be photographed, videotaped, or audiotaped by the media; permitting clients to participate as subjects in a research project; and so on.

 

State and local jurisdictions have different interpretations and applications of informed consent standards. Nonetheless, agreement is considerable about what constitutes valid consent by clients in light of prevailing legislation and case law. In general, for consent to be considered valid six standards must be met (Table 5):

 

 

Table 5. Standards of Informed Consent

 

 

(1) coercion and undue influence must not have played a role in the client’s decision;

 

(2) clients must be mentally capable of providing consent (for example, they should not be psychiatrically impaired, under the influence, or illiterate in a way that impairs comprehension);

 

(3) clients must consent to specific procedures or actions;

 

(4) the consent forms and procedures must be valid;

 

(5) clients must have the right to refuse or withdraw consent; and

 

(6) clients’ decisions must be based on adequate information. Mental health professionals should be familiar with:

 

  • ways to prevent the use of coercion to obtain client consent

 

  • ways to assess clients’ competence to give consent

 

  • information that should appear on consent forms (for example, a statement of purpose, risks and potential benefits, clients’ right to withdraw or refuse to give consent, an expiration date)

 

  • the need to have a conversation with clients about the content of the consent form

 

  • the need for interpreters when clients do not read or understand the primary language in the practice setting

 

  • exceptions to informed consent (for example, genuine emergencies)

 

  • common problems associated with consent forms (such as having clients sign a blank form that the practitioner plans to complete sometime later and including jargon in the description of the purpose of the consent)

 

 

Allegations of improper client assessment and intervention concern a wide range of activities. These claims of malpractice or misconduct often allege that the clinician assessed a client’s needs or provided services in a way that departed from the profession’s standard of care. That is, the practitioner failed to assess properly, failed to provide a needed service, or provided a service in a way that was inconsistent with professional standards and caused some kind of harm. Practitioners may neglect to ask important questions during an assessment, may fail to document important assessment information, fail to maintain clear boundaries when communicating with clients online, or may use some treatment technique that is unorthodox or for which they do not have proper training.

 

It is important to note that courts do not expect perfection in practitioners’ assessments and service delivery. Judges recognize the inexact nature of these phenomena. What they do expect, however, is conformity with the standard of care in the practitioner’s profession with regard to assessment and service delivery. Although a client may have been harmed somehow, the practitioner may have acted reasonably and in a way that is widely accepted in the profession. An error in judgment is not by itself negligent.

 

Some claims related to assessment and service delivery involve suicide. For example, a client who failed in an attempt to commit suicide and was injured in the process, or family members of someone who committed suicide, may allege that a clinician did not properly assess the suicide risk or properly respond to or manage a client’s suicidal ideation and tendencies.

 

Some claims include allegations that practitioners used unconventional or nontraditional intervention techniques that proved harmful.  According to the NASW Code of Ethics, for example, “When generally recognized standards do not exist with respect to an emerging area of practice, social workers should exercise careful judgment and take responsible steps (including appropriate education, research, training, consultation, and supervision) to ensure the competence of their work and to protect clients from harm” (standard 1.04[c]).

 

Another problem area involves advice giving. Practitioners must be careful to not give clients advice outside their areas of training and expertise. For example, a marriage and family therapist or psychologist who gives a client advice about the proper use of medication that a psychiatrist has prescribed could be charged with practicing medicine without a license.

 

Some claims allege that mental health professionals used what is known as undue influence in their relationships with clients. Undue influence occurs when practitioners use their authority improperly to pressure, persuade, or sway a client to engage in an activity that may not be in the client’s best interest or that may pose a conflict of interest. Examples include convincing a dying client to include the counselor in her will and becoming involved with a client in a profitable business.

 

Practitioners must also be aware of liability, negligence, and misconduct claims that can arise in relation to protective services, that is, efforts to protect abused and neglected children, elderly, and other vulnerable populations. Every state has a statute obligating mandated reporters, including mental health professionals, to notify local protective service officials when they suspect abuse or neglect of a child. Many states have similar statutes concerned with the elderly and people with disabilities.

 

Practitioners need to prevent allegations that they failed to report suspected abuse or neglect; knowingly made false accusations of abuse and neglect (“bad faith” reporting); inadequately protected a child who was apparently abused or neglected (for example, by failing to investigate a complaint swiftly and thoroughly, failing to place an abused or neglected child in foster care, or returning an at-risk child to dangerous guardians); violated parental rights (for example, by conducting unnecessarily intrusive investigations); or placed children in dangerous or inadequate foster homes. Comparable issues can arise related to vulnerable elderly or people with disabilities. 

 

Sadly, one of the most common allegations of misconduct against practitioners involves sexual abuse of clients. Typically, these cases involve mental health practitioners who are somehow impaired in their personal lives and who knowingly exploit clients. Some practitioners have been disciplined because they exchanged sexualized electronic messages with clients.

 

Supervision of Staff

 

Many mental health professionals supervise staff members. A clinical di­rector in a community mental health center may supervise caseworkers and the director of a battered women’s shelter may supervise counselors. Typically, supervisors provide case supervision and consultation, evaluate workers’ performance, and offer training. Because of their oversight responsibilities, supervisors can be named in ethics complaints and lawsuits involving mistakes or unethical conduct engaged in by the people who work under them. These claims usually cite the legal concept of respondeat superior, which means ‘let the master respond’, and the doctrine of vicarious liability. That is, supervisors may be found liable for actions or inactions in which they were involved only vicariously, or indirectly. According to respondeat superior and vicarious liability, supervisors are responsible for the actions or inactions of the people they supervise and over which the supervisors had some degree of control. Of course, the staff member who made the mistake that led to the claim against the supervisor can also be found liable.

 

Supervisors should be concerned about several specific issues, including supervisors’ failure to provide information necessary for supervisees to obtain clients’ consent; identify and respond to supervisees’ errors in all phases of client contact, such as the inappropriate disclosure of confidential information; protect third parties; detect or stop a negligent treatment plan or treatment carried out longer than necessary; determine that a specialist is needed for treatment of a particular client; meet regularly with the supervisee; review and approve the supervisee’s records, decisions, and actions; and provide adequate coverage in the supervisee’s absence. Supervisors should comply with the relevant standards in their professions concerning the knowledge and skills needed to provide competent supervision, the need for clear and appropriate boundaries in relationships with supervisees, and evaluation of supervisees.

 

Clinicians in private practice face special issues. Independent practi­tioners do not always have easy access to regular supervision or consultation. It is important for independent practitioners to contract for supervision with a colleague or participate in peer consultation groups. Otherwise, solo private practitioners may be vulnerable to allegations that they failed to obtain proper supervision or consultation, should some question be raised about the quality of their work.

 

Mental health professionals should be careful to document the nature of the supervision they have provided. They should have regularly scheduled appointments with supervisees, request detailed information about the cases or other work they are supervising, and occasionally observe their supervisees’ work, if possible. Supervisors should be careful not to sign off on insurance or other forms for cases they have not supervised.

 

Consultation, Referral, and Records

 

Mental health professionals often need to or should obtain consultation from colleagues, including members of their own and other professions, who have special expertise. Clinicians may encounter a case in which they need consultation about a client’s unique problem, such as an eating disorder or psychotic symptoms. If the client’s presenting problem is outside the practitioner’s expertise, the clinician should seek consultation or make an appropriate referral.    

 

Practitioners can be vulnerable to ethics complaints and malpractice allegations if they fail to seek consultation when it is warranted. In addition, practitioners can be vulnerable if they do not refer a client to a specialist for an assessment, evaluation, or treatment. For instance, if a client who is being treated for symptoms of depression complains to her clinician that she has chronic headaches, the clinician would be wise to refer the client to a physician who can rule out any organic problem, such as a brain tumor.  Some clinicians routinely encourage all clients to have a physical as part of their treatment.

 

Practitioners can also encounter ethics complaints or lawsuits when they fail to consult an organization for advice. For example, this could happen to a psychotherapist who suspects that a particular child has been abused but decides not to consult with or report to the local child welfare authorities. This may occur when clinicians believe they are better off handling the case themselves, they do not have confidence in the child protection agency staff, and they do not want to undermine their therapeutic relationship with their clients. The result may be that the clinician will be cited or sued for failing to consult with a specialist (in this case, the child welfare agency).

 

Clinicians must pay close attention to the procedures they use when they refer clients to or consult with another practitioner. They have a responsi­bility to refer clients to colleagues with strong reputations and to practitioners with appropriate expertise and credentials. Otherwise, the practitioner may be cited for negligent referral.

 

Mental health professionals who consult with or refer clients to colleagues should provide careful documentation of the contact in the case record. It is extremely important for practitioners to be able to demonstrate the assistance they received in cases, in the event that a client or some other party raises questions concerning the appropriateness of the practitioners’ actions.

 

The same advice applies to record keeping in general. Careful and dili­gent recording enhances the quality of service provided to clients. Thorough records identify, describe, and assess clients’ situations; define the purpose of service; document service goals, plans, activities, and progress; and evaluate the effectiveness of service. Recording also helps to maintain the continuity of care. Carefully recorded notes help practitioners recall relevant detail from session to session and can enhance coordination of service and supervision among staff members within an agency. Recording also helps to ensure quality care if a client’s primary clinician becomes unavailable because of illness, vacation, or departure from the agency.

 

Deception and Fraud

 

The vast majority of mental health professionals are honest in their dealings with staff, other social service agencies, insurance companies, and so on. Unfortunately, however, a relatively small number of practitioners engage in some form of deception and fraud in their dealings with these parties.

 

Mental health practitioners may engage in deception and fraud for various reasons and with different motives. Some practitioners – a small percentage, fortunately – are simply dishonest and attempt to take advantage of others for reasons of greed, malice, self-protection, or self-satisfaction. Practitioners who become sexually involved with clients, extort money from clients, and bill clients’ insurance companies for services that were never rendered are examples.

 

Practitioners who market or advertise their services also need to be careful to avoid deception and fraud. Practitioners must be sure to provide fair and accurate descriptions of their services (including distance or remote services), expertise, and credentials and to avoid exaggerated claims of effectiveness.  Practitioners must also avoid deception and fraud when applying for liability insurance, employment, a license, or some other form of certification. Administrators must be careful not to provide false accounts of grant or budget expenditures, or personnel evaluations. In addition, practitioners must not alter or falsify case records to create the impression that they provided services or supervision that were never actually provided. If a practitioner finds that accurate details were inadvertently omitted from a record, the information can be added, but the record should clearly reflect that the entry was made subsequently. The practitioner should sign and date the addition to show that it was a correction.

 

Practitioners also must be careful to avoid deception and fraud when they write letters of reference for staff members or when they submit letters to employers or other parties, such as insurers or government agencies, on clients’ behalf. On occasion practitioners have exaggerated staff members’ skills (or problems), or embellished their descriptions of clients’ disabilities, in order to be helpful (or harmful). Practitioners incur considerable risk if they knowingly misrepresent staff members’ or clients’ qualities. Practitioners should issue only statements about colleagues and clients that they know to be true or have good reason to believe are true.

 

Termination of Service

 

In addition to ethical problems related to confidentiality, the initiation and delivery of services, supervision, consultation, referral, and deception and fraud, mental health professionals need to be concerned about the ways in which they terminate services. Improper or unethical termination of services might occur when a clinician leaves an agency or a community suddenly without adequately preparing a client for the termination or without referring a client to a new service provider. In other instances, a clinician might terminate services abruptly to a client in dire need of assistance because the client is unable to pay for the care. Practitioners can also encounter problems when they are not available to clients or do not properly instruct them about how to handle emergencies that may arise. Practitioners who provide services remotely (for example, online counseling) must be very careful to meet clients’ needs, especially in emergency circumstances.

 

Many ethical problems related to termination of services involve the con­cept of abandonment. Abandonment is a legal concept that refers to instances in which a professional is not available to a client when needed. Once mental health practitioners begin to provide service to a client, they incur a legal responsibility to continue that service or to properly refer a client to another competent service provider. Of course, practitioners are not obligated to serve every individual who requests assistance. A particular practitioner might not have room to accept a new referral or may lack the special expertise that a particular client’s case may require.

 

Nonetheless, once a practitioner begins service, it cannot be terminated abruptly. Rather, practitioners are obligated to conform to their profession’s standard of care regarding termination of service and referral to other providers in the event the client is still in need.

 

A more common problem occurs when clients’ services are terminated prematurely, before termination is clinically warranted. This may occur for several reasons. Clients may request termination of service, perhaps because of the expense or inconvenience involved. In these cases, termination of service may be against the advice of the clinician involved in the client’s care. For example, clients in residential and nonresidential substance abuse treatment programs may decide that they do not want to continue receiving services. They may leave residential programs against professional advice or may decide not to return for outpatient services.

 

In other instances, services may be terminated at the clinician’s request or initiative, for instance, when practitioners believe that a client is not making sufficient progress to warrant further treatment or is not able to pay for services. In some cases, program administrators in a residential program may want to terminate a client whose insurance benefits have run out or in order to make a bed available for a client who will generate a higher reimbursement rate because of his or her particular insurance coverage. In a number of cases, practitioners terminate services when they find clients to be uncooperative or too difficult to handle. Practitioners may also terminate services prematurely because of poor clinical judgment; that is, practitioners may believe that clients have made more (or less) progress than they have in fact made.

       

Mental health professionals face a unique ethical challenge if they signed a "non-compete" agreement at the time of agency employment.  Some employers require new employees to agree to not "compete" with the employer in the event the employee leaves the agency for a new employment setting (including independent or private practice).  Ordinarily these agreements prohibit clinicians from serving current clients in their new employment setting.  In my view, these agreements are unethical because they interfere with clients' right to decide from whom they want to receive clinical services, which may entail following the clinician to her or his new employment setting.  Of course, clinicians should never engage in any form of undue influence to convince clients to follow them to a new employment setting.  Rather, clinicians should acquaint clients with all of their options and discuss the potential advantages and disadvantages of each.

 

Premature termination of services can result in ethics complaints and lawsuits alleging that, as a result, clients were harmed or injured, or injured some third party because of their continuing disability. A client who attempts to commit suicide following premature termination from a psychiatric hospital may allege that the premature termination was the direct cause of the attempt. Family members who are physically injured by a client who was discharged prematurely from a substance abuse treatment program may claim that their injuries are the direct result of poor clinical judgment.

 

On occasion services must be terminated earlier than a clinician or client would prefer for reasons that are quite legitimate. This may occur because a client in fact does not make reasonable progress or is uncooperative, or because the practitioner moves out of town or finds that she or he does not have the particular skills or expertise needed to be helpful to the client. When this occurs, practitioners must be careful to terminate services to clients properly.

 

Adequate follow-through should include providing clients as much advance warning as possible, along with the names of several other professionals they might approach for help. Practitioners should also follow up with clients who have been terminated to increase the likelihood that they receive whatever services they may need.

 

Practitioners can also face ethics complaints or lawsuits if they do not provide clients with adequate instructions for times when the practitioners are not available as a result of vacations, illness, or emergencies. Practitioners should provide clients with clear and detailed information, verbally and in writing, about what they ought to do in these situations, such as whom to call, where to seek help, and so on.

 

Practitioners who expect to be unavailable for a period of time – perhaps because of vacation or medical care – should be especially careful to arrange for competent coverage. This is particularly important when practitioners provide services to clients remotely. The colleagues who are to provide the coverage should be given sufficient information about the clients to enable them to provide adequate care should the need arise. Of course, practitioners should obtain clients’ consent to the release of this information about their cases and should disclose the least amount of information necessary to meet the clients’ needs.

 

The Impaired Mental Health Practitioner

 

As I observed earlier, many ethics complaints and lawsuits result from genuine mistakes made by mental health practitioners who are otherwise competent. In other instances, ethics complaints and lawsuits follow competent practitioners’ well-meaning attempts to make the right ethical judgment, for example, with respect to disclosing confidential information about a client to protect a third party. In many cases, however, ethics complaints and lawsuits are filed because of mistakes, judgment errors, or misconduct engaged in by practitioners who are, in some way, impaired.   Impairment involves problems in a clinician’s functioning that is reflected in an inability and/or unwillingness to follow professional standards; an inability or unwillingness to acquire professional skills in order to reach an acceptable level of competency; and an inability or unwillingness to control personal stress and emotional problems that interfere with professional functioning.

 

The seriousness of impairment among practitioners and the forms it takes vary. Impairment may involve failure to provide competent care or violation of the profession’s ethical standards. It may also take such forms as providing flawed or inferior psychotherapy to a client, sexual involvement with a client, or failure to carry out professional duties as a result of substance abuse or mental illness.

 

Impairment among professionals has various causes. Stress related to employ­ment, illness or death of family members, marital or relationship problems, financial problems, midlife crises, personal physical or mental illness, legal problems, and substance abuse may lead to impairment. Stress induced by professional education and training can also lead to im­pairment, stemming from the close clinical supervision and scrutiny students receive, the disruption in students’ personal lives caused by the demands of schoolwork and field placements, and the pressures of students’ academic programs.

 

Clinicians encounter special sources of stress that may lead to impairment because their therapeutic role often extends into the non-work areas of their lives (such as relationships with family members and friends) and because of the lack of reciprocity in relationships with clients (therapists are “always giving”), the often slow and erratic nature of therapeutic progress, and the triggering of therapists’ own issues by therapeutic work with clients.

 

Ethically, practitioners should take steps to address their impairment.  Practitioners should not allow their own personal problems, psychosocial distress, legal problems, substance abuse, or mental health difficulties to interfere with their professional judgment and performance or to jeopardize the best interests of people for whom they have a professional responsibility.  As mentioned earlier, practitioners whose personal problems, psychosocial distress, legal problems, substance abuse, or mental health difficulties interfere with their professional judgment and performance should immediately seek consultation and take appropriate remedial action by seeking professional help, making adjustments in workload, terminating practice, or taking any other steps necessary to protect clients and others.

 

Unfortunately, many practitioners are reluctant to seek help for personal prob­lems. Also, many practitioners are reluctant to confront colleagues about their impairment. Practitioners may be hesitant to acknowledge impairment within the profession because they fear how colleagues would react to confrontation and how this might affect future collegial relationships.

 

Some mental health practitioners may find it difficult to seek help for their own problems because they believe that they have infinite power and invulnerability, that they should be able to work out their problems themselves, an acceptable therapist is not available, it is more appropriate for them to seek help from family members or friends, confidential information might be disclosed, proper treatment would require too much effort and cost, they have a spouse who is unwilling to participate in treatment, and therapy would not be effective. 

 

It is important for practitioners to design ways to prevent impairment and respond to impaired colleagues. They must be knowledgeable about the indicators and causes of impairment so that they can recognize problems that colleagues may be experiencing. Practitioners must also be willing to confront impaired colleagues constructively, offer assistance and consultation, and, if necessary as a last resort, refer the colleague to a supervisor or local regulatory or disciplinary body (such as a professional organization or local licensing or regulatory body).  Practitioners who have direct knowledge of a colleague's impairment that is due to personal problems, psychosocial distress, substance abuse, or mental health difficulties and that interferes with practice effectiveness should consult with that colleague when feasible and assist the colleague in taking remedial action.  Practitioners who believe that a colleague's impairment interferes with practice effectiveness and that the colleague has not taken adequate steps to address the impairment should take action through appropriate channels established by employers, agencies, licensing and regulatory bodies, and other professional organizations. 

 

Although some cases of impairment must be dealt with through formal ad­judication and disciplinary procedures, many cases can be handled primarily by arranging therapeutic or rehabilitative services for distressed practitioners. For example, professional associations can enter into agreements with local employee assistance programs, to which impaired members can be referred.

 

Conducting an Ethics Audit

 

One of the most effective ways to prevent ethics complaints and ethics-related lawsuits is to conduct what I refer to as an ethics audit.  An ethics audit provides practitioners with a practical framework for examining and critiquing the ways in which they address a wide range of ethical issues.  More specifically, an ethics audit provides practitioners with opportunities as outline in Table 6.

 

 

Table 6.  Ethics Audit: Opportunities

 

 

Identify pertinent ethical issues in their practice settings that are unique to the client population, treatment approach, setting, program design, and staffing pattern

 

Review and assess the adequacy of their current ethics-related policies, practices, and procedures

 

Design a practical strategy to modify current practices, as needed, to prevent lawsuits and ethics complaints

 

Monitor the implementation of this quality assurance strategy

 

 

Conducting an ethics audit involves several key steps and these are outlined in Table 7.

 

 

Table 7.  Ethics Audit: Steps

 

 

1.   In agency settings a staff member should assume the role of chair of the ethics audit committee.  Appointment to the committee should be based on demonstrated interest in the agency's ethics-related policies, practices, and procedures.  Ideally the chair would have formal education or training related to professional ethics.  Practitioners in private or independent practice may want to consult with knowledgeable colleagues in a peer supervision group.

 

2.   Using the list of major ethical risks as a guide (client rights, privacy and confidentiality, informed consent, service delivery, boundary issues and conflicts of interest, documentation, defamation of character, client records, supervision, staff development and training, consultation, client referral, fraud, termination of services, practitioner impairment), the committee should identify specific ethics-related issues on which to focus.  In some settings the committee may decide to conduct a comprehensive ethics audit, one that addresses all the topics.  In other agencies the committee may focus on specific ethical issues that are especially important in those settings.

 

3.   The ethics audit committee should decide what kind of data it will need to conduct the audit.  Sources of data include documents and interviews conducted with agency staff that address specific issues contained in the audit.  For example, staff may examine the agency's clients' rights and informed-consent forms or policies pertaining to boundaries and conflicts of interest.  In addition, staff may interview or administer questionnaires to "key informants" in the agency about such matters as the extent and content of ethics-related training that they have received or provided, specific ethical issues that need attention, and ways to address compelling ethical issues.  Committee members may want to consult a lawyer about legal issues (for example, the implications of federal or state confidentiality regulations and laws or key court rulings) and agency documents (for example, the appropriateness of agency informed-consent and release-of-information forms).  Also, committee members should review all relevant regulations and laws (federal, state, and local) and ethics codes in relation to confidentiality, privileged communication, informed consent, client records, termination of services, supervision, licensing, personnel issues, and professional misconduct.

 

4.   Once the committee has gathered and reviewed the data, it should assess the risk level associated with each topic.  The assessment for each topic has two parts: policies and procedures.  The ethics audit assesses the adequacy of various ethics-related policies and procedures.  Policies may be codified in formal agency documents or memoranda (for example, official policy concerning confidentiality, informed consent, dual relationships, and termination of services).  Procedures entail practitioners' handling of ethical issues in their relationships with clients and colleagues (for example, concrete steps that staff members take to address ethical issues involving confidentiality or collegial impairment, routine explanations provided to clients concerning agency policies about informed consent and confidentiality, ethics consultation obtained, informed-consent forms completed, documentation placed in case records in ethically complex cases, and supervision and training provided on ethics-related topics).  The committee should assign each topic addressed in the audit to one of four risk categories: no risk -- current practices are acceptable and do not require modification; minimal risk -- current practices are reasonably adequate, but minor modifications would be useful; moderate risk -- current practices are problematic, and modifications are necessary to minimize risk; and high risk -- current practices are seriously flawed, and significant modifications are necessary to minimize risk.

 

5.   Once the ethics audit is complete, practitioners need to take assertive steps to make constructive use of the findings.  Practitioners should develop a plan for each risk area that warrants attention, beginning with high-risk areas that jeopardize clients and expose practitioners and their agencies to serious risk of lawsuits and ethics complaints.  Areas that fall into the categories of moderate risk and minimum risk should receive attention as soon as possible.

 

6.   Establish priorities among the areas of concern, based on the degree of risk involved and available resources.

 

7.   Spell out specific measures that need to be taken to address the problem areas identified.  Examples include reviewing all current informed-consent forms and creating updated versions; writing new, comprehensive confidentiality policies; creating a client rights statement; inaugurating training of staff responsible for supervision; strengthening staff training on documentation and boundary issues; and preparing detailed procedures for staff to follow when terminating services to clients.  Identify all the resources needed to address the risk areas, such as agency personnel, publications, staff development time, appointment of a committee or task force, legal consultants, and ethics consultants.

 

8.   Identify which staff will be responsible for the various tasks and establish a timetable for completion of each.  Have a lawyer review and approve policies and procedures to ensure compliance with relevant laws, regulations, and court opinions.

 

9.   Identify a mechanism for following up on each task to ensure its completion and for monitoring its implementation.

 

10.        Document the complete process involved in conducting the ethics audit.  This documentation may be helpful in the event of a lawsuit alleging ethics-related negligence (in that it provides evidence of the agency's or practitioner's conscientious effort to address specific ethical issues).

 

 

In this section I discussed the ways in which some mental health practitioners – clearly a minority in the field – engage in malpractice or ethical misconduct. I reviewed various mechanisms available for sanctioning and disciplining practitioners found in violation of ethical standards and discussed the problem of impaired practitioners.  I also discussed how practitioners can conduct an ethics audit to assess the adequacy of their ethics-related policies, practices, and procedures.

 

I want to thank you for participating in this continuing education course sponsored by BehavioralHealthCE.  I hope you have found it useful.   

 

I wish you well.

 



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