Law and Ethics

                              

Course Objectives

1.Describe the problematic issues associated with boundary violations.

2.Describe how the supervisory role can be used to prevent boundary violations.

3.Identify the ethical and legal principals of confidentiality.

4.Describe the reporting Mandate and to whom You must report.

 

Confidentiality

Confidentiality is designed to reduce the stigma associated with seeking mental health care, foster trust in the treatment relationship and ensure individuals privacy in their health care decisions. Informed consent and confidentiality are important anchors to the principle of autonomy. If a patient believes that the information they share will be disseminated they will be less likely to seek treatment and be less likely to be completely honest.

State evidence code definitions of confidentiality and holder of privilege.

Confidential Communication

1012. As used in this article, "confidential communication between patient and psychotherapist" means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

Holder of Privilege

1013. As used in this article, "holder of the privilege" means: (a) The patient when he has no guardian or conservator. (b) A guardian or conservator of the patient when the patient has a guardian or conservator. (c) The personal representative of the patient if the patient is dead. 1014. Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure. The relationship of a psychotherapist and patient shall exist between a psychological corporation as defined in Article 9 (commencing with Section 2995) of Chapter 6.6 of Division 2 of the Business and Professions

Laws Regarding Confidentiality

Exception to Confidentiality

Detention of Mentally Disordered Persons For Evaluation and Treatment (5150)

Welfare and Institutions Code 5150: If a client is a danger to him or herself or others or gravely disabled as a result of a mental disorder, a therapist may have him or her involuntary hospitalized for 72 hours. In cases in which hospitalization is required, voluntary hospitalization is always preferable to involuntary hospitalization. Under certain conditions, a person can be detained for longer than 72 hours.

How to Initiate a Hold: Persons legally authorized by Welfare and Institutions Code 5150 to involuntarily confine an individual include police officers, members of the attending staff (e.g., a Psychiatric Emergency Team, or PET) of a facility certified by the county to hold a patient or other professional persons designated by a county. A therapist who believes that his or her client should be hospitalized involuntarily should contact the police or a PET.

5150: When any person, as a result of a mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, a member of the attending staff ... of an evaluation facility designated by the county, designated members of a mobile crisis team ... or other professional person designated by a county, may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled. If the probable cause is based on a statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.

The law provides for confinement for a greater period than 72 hours if certain conditions are met. For instance, a person detained for 72 hours may be held for not more than 14 days of involuntary intensive treatment if the professional staff finds that the person is a danger to him or herself, others or gravely disabled as the result of a mental disorder or chronic alcoholism (W.I.C. 5250). Someone who has threatened to take his or her own life may be held an additional 14 days beyond the original 14 days (W.I.C. 5260). Finally, someone whose mental disorder causes continued imminent dangerousness (i.e., someone who has threatened, attempted or inflicted physical harm upon another after custody) may be held for an additional 90 days (W.I.C. 5300).

The decision as to how long to hold a dangerous patient is made by designated staff after the person is taken into custody. Unless he or she is a designated staff member, a therapist would NOT participate in this decision.

TARASOFF

Prosenjit Poddar was born into the Harijan (untouchable) caste in Bengal, India. He arrived at the University of California at Berkeley and resided in the International House.  In the fall of 1968, he met Tanya Tarasoff while she was attending folk dancing classes at the International House. They saw each other weekly throughout the fall, and on New Year's Eve, Tanya kissed Poddar. Poddar interpreted the kiss to be the recognition of the existence of a serious relationship. This view was not shared by Tanya who, when learning of his feelings, told him she was involved with other men and otherwise indicated that she was not interested in entering into an intimate relationship with him.

As a result of this rebuff, Poddar underwent a severe emotional crisis. He became depressed and neglected his appearance, his studies, and his health.  He remained by himself, frequently abed, speaking disjointedly, and often weeping. He spoke to a friend of being in love with Tanya and about killing her, in particular, by blowing up her room. He told this friend he could not control himself.  His condition persisted with steady deterioration throughout the spring and into the summer of 1969. Poddar did have occasional meetings with Tanya during this period and tape-recorded many of their conversations in an attempt to ascertain why she did not love him.

During the summer of 1969, Tanya went to Brazil. After her departure, Poddar began to improve and at the suggestion of a friend, sought psychological assistance. The exact date Poddar entered therapy is not available, but on August 18, 1969, he was a voluntary outpatient at Cowell Memorial Hospital (also called University Hospital in some reports).  Although he initially had been seen by a psychiatrist, Dr. Stuart Gold, on August 18, 1969, he was under the care of a staff psychologist, Dr. Lawrence Moore. During the August 18 psychotherapy session, his ninth such session, Poddar confided in Dr. Moore that he was going to kill an unnamed girl, readily identifiable as Tanya, when she returned from Brazil.

On August 20, Dr. Moore personally notified campus police officers Everett D. Atkinson and Johnny C. Teel that Poddar was capable of doing harm to himself or others. On that same day, Dr. Moore wrote a letter to the Chief of Campus Police, William Beal, stating that Poddar suffered from a "paranoid schizophrenic reaction, acute and severe" and was a danger to himself and to others. Dr. Moore further stated that, if the campus police would pick Poddar up and transfer him to Herrick Hospital, Dr. Moore would sign a 72-hour emergency detention order on Poddar. Finally, Dr. Moore informed the campus police that Poddar's behavior could be quite rational at times. Dr. Gold and Dr. James Yandell, Dr. Moore's psychiatric supervisor and Assistant Director of the Department of Psychiatry, concurred in Dr. Moore's diagnosis and the need for Poddar's hospitalization.

The campus police took Poddar into custody. Officers Gary L. Browning, Joseph P. Halleran, and Atkinson talked to Poddar and were satisfied that he was rational and had "changed his attitude altogether." After the officers elicited a promise from Poddar that he would try to stay away from Tanya, the campus police released him.

It would appear that the campus police released Poddar on their own initiative; however, either simultaneously with the release or shortly thereafter, Dr. Harvey Powelson, Director of Psychiatry at Cowell Memorial Hospital, learned of the attempt to institute a 72-hour emergency detention order. Dr. Powelson requested that Chief Beall return Dr. Moore's letter, and ordered Moore to destroy all copies of the letter and his therapist's notes on Poddar.  In addition, Dr. Powelson ordered his staff to take no further action to place Poddar in a 72-hour treatment and evaluation facility.

Tanya returned from Brazil in October. Poddar continued to follow her and reportedly heard her tell friends of an affair with a "playboy."  The criminal cases indicate that in October, after Tanya had returned, Poddar stopped seeing Dr. Moore.  However, the Supreme Court, looking to the same source, stated that Poddar stopped his therapy immediately after his detention by the campus police.  In any case, on October 27, 1969, Poddar went to Tanya's home to speak to her. Tanya was not at home and her mother told Poddar to leave. Poddar returned later armed with a pellet gun and a kitchen knife. He found Tanya alone. She refused to speak to him and, when he persisted, she screamed. At this point, Poddar shot her with the pellet gun and Tanya ran wildly from the house. Poddar caught her in the yard and stabbed her repeatedly and fatally.  Poddar then returned to the house and called the police. Poddar told the police he had stabbed Tanya and asked that he be handcuffed.

Poddar was examined within 24 hours of the stabbing by Dr. Kermit Gruberg, a Berkeley Police Department psychiatrist. Gruberg confirmed the diagnosis of paranoid schizophrenia.  Poddar was charged with the murder of Tanya. He pled not guilty and not guilty by reason of insanity.  Some time prior to trial, Poddar was examined by Dr. Wilmer Anderson, a neurologist hired by the defense, who testified that, on the basis of neurologic tests, including an electroencephalogram, there were organic abnormalities in Poddar's brain.  At trial, Dr. Philip Grossi, a psychiatrist hired by the defense, Dr. Gruberg, Dr. Anderson, Dr. Moore, and Dr. Gold testified that Poddar was insane and a paranoid schizophrenic.

Dr. John Peschau, a court-appointed psychiatrist, testified that Poddar was not a paranoid schizophrenic and that he could understand the duty the law placed upon him.  During Dr. Moore's testimony, the details of Poddar's threats against Tanya and the attempt to secure an emergency commitment were revealed in open court.  If Tanya's family members were unaware of these facts previously, then they certainly became aware of them at this time. It is not possible from the case reports to establish a temporal relationship between the testimony of Drs. Moore and Gold and the filing of the civil suit. However, their presentation for the defense at trial could not have established a cordial relationship with the family.

The jury convicted Poddar of murder in the second degree. Poddar appealed the decision on multiple grounds. The court of appeals heard the case in 1972 and focused on trial court instruction errors, including a failure to reinstruct the jury as follows: "Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you can not find him guilty of murder in either the first or second degree." The court reduced his conviction from murder in the second degree to manslaughter and remanded the case to the trial court to pronounce judgment.  Two years later the Supreme Court vacated the judgment of the appeals court, holding that the instructions given by the trial court, "failed to serve the needs of the jurors to understand and properly apply the evidence of diminished capacity to the underlying issues."  The court concluded that the error was prejudicial and remanded the case for retrial.

Poddar was not retried. Rather than go through another lengthy trial (the first was over three weeks), more than five years after the fact, the state released Poddar on condition he immediately leave for India and not reenter the United States. He returned to India and, according to one commentator, is happily married to an attorney.

Vitaly and Lydia Tarasoff, Tanya's parents, filed wrongful death suits against the university and the psychotherapists. They alleged four causes of action. The first cause of action was directed against the therapists' failure to detain Poddar. The second was directed against the therapists' failure to warn the Tarasoffs that Poddar was a grave danger to Tanya. The third was directed against Dr. Powelson and sought punitive damages for his actions following the therapists' attempt at 72-hour emergency detention. Dr. Powelson's actions were characterized as "malicious and oppressive abandonment of a dangerous patient." The fourth cause of action was titled "Breach of Primary Duty to Patient and the Public," and involved essentially the same allegations as the first cause of action.

The Alameda County Superior Court issued "a judgment of dismissal upon an order sustaining a demurrer without leave to amend."  The Tarasoffs appealed. The court of appeals affirmed the superior court judgment, ruling the first and fourth causes of action were statutorily barred.  The court could find no special relationship between the defendants and Tanya or her parents and therefore found no duty to warn.  The court ruled that Dr. Powelson had no duty to commit Poddar and, even if he did, such action was discretionary and protected under statute.  The Tarasoffs appealed once more.

Duty of [Physicians] to Take Precautions against Patient Violence.

1.Scope of cause of action. Except as provided in paragraph 5, no cause of action shall lie against a [physician], nor shall legal liability be imposed, for breaching a duty to prevent harm to person or property caused by a patient unless a) the patient has communicated to the [physician] an explicit threat to kill or seriously injure a clearly identified or reasonably identifiable victim or victims, or to destroy property under circumstances likely to lead to serious personal injury or death, and the patient has the apparent intent and ability to carry out the threat; and b) the [physician] fails to take such reasonable precautions to prevent the threatened harm as would be taken by a reasonably prudent [physician] under the same circumstances. Reasonable precautions include, but are not limited to, those specified in paragraph 2.

2. Legally sufficient precautions. Any duty owed by a [physician] to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the [physician] either a) communicates the threat to any identified victim or victims; or b) notifies a law enforcement agency in the vicinity where the patient or any potential victim resides; or c) arranges for the patient to be hospitalized voluntarily; or d) takes legally appropriate steps to initiate proceedings for involuntary hospitalization.

3.Immunity for disclosure. Whenever a patient has explicitly threatened to cause serious harm to person or property, or a [physician] otherwise concludes that a patient is likely to do so, and the [physician], for the purpose of reducing the risk of harm, discloses any confidential communications made by or relating to the patient, no cause of action shall lie against the [physician] for making such disclosure.

4. Definitions.

a. For purposes of this [section], "patient" means any person with whom a [physician] has established a [physician]-patient relationship.

b. For purposes of this [section], ["physician"] means a person licensed to practice medicine in this state.

5. Limited applicability of this section. This section does not modify any duty to take precautions to prevent harm by a patient that may arise if the patient is within the custodial responsibility of a hospital or other facility or is being discharged there from.

Many states, before and after the promulgation of APA's Model Statute, enacted laws limiting a therapist's liability so long as certain specific actions are taken by the therapist when a patient threatens violence.  Such statutes have sought to reconcile the competing policy concerns for public safety, while limiting intrusion into the therapeutic relationship. Alan Stone commented on this development that "the duty to warn is not as unmitigated a disaster for the enterprise of psychotherapy as it once seemed to critics like myself." 

Extending sessions can be a sign that the therapist is developing strong feelings for the client, a cue to a potential boundary violation or a way of showing subtle favoritism toward the client.

 Reporting Child Abuse And Neglect

Mandated Reporting Law: When a therapist or an intern or trainee, in his or her professional capacity, acquires knowledge or a reasonable suspicion that a child is being abused (or has been abused), he or she must make a telephone report immediately and a written follow-up within 36 hours to the appropriate authorities.

Categories of Child Abuse: physical abuse, sexual abuse, severe and general neglect, willful cruelty and unjustifiable punishment, corporal punishment and injury and abuse in out-of-home care.

Categories of Sexual Abuse: The two categories of sexual abuse are sexual assault and sexual exploitation. Sexual assault includes rape and rape in concert, oral copulation and sodomy, lewd and lascivious acts upon a child under the age of 14, penetration of a genital or anal opening by a foreign object and child molestation.  Unlawful sexual intercourse with a child under the age of 16 when the perpetrator is over the age of 21 is reportable as child abuse.  Another crime also reportable is lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more that 10 years older than the victim.  Sexual exploitation includes conduct involving matter depicting minors engaged in obscene acts; promoting, aiding or assisting a minor to engage in prostitution, a live performance involving obscene sexual conduct or posing for a pictorial depiction involving obscene conduct for commercial purposes; and depicting a child in or knowingly developing a pictorial depiction in which a child engages in obscene sexual conduct.

A report of child abuse is not required when a therapist learns of the abuse in a setting outside his or her professional capacity. A report is also not mandated when a therapist learns of a case involving an adult who was abused as a minor. In this case, however, clinical and ethical considerations will bear on a therapist's course of action. For example, when a therapist learns of an adult who was abused as a child, that therapist should make an effort to learn whether the perpetrator continues to have access to children. If so, and the circumstances arouse a reasonable suspicion of child abuse, the clinician must file a report. Consensual, non-abusive sex between two 13-year-olds is not reportable, but would become reportable when just one of the partners turns 14.

When, in the course of his or her professional role, a psychotherapist either knows or reasonably suspects that a minor is being abused, they have a legal obligation to report what he or she knows of the situation to the proper authorities (Child Protective Services, police, county probation offices or county welfare office) by telephone as soon as possible, with a written follow-up required within 36 hours. The therapist has no discretion in this matter and may be liable for prosecution if he or she does not report.

 The requirement to report child abuse and neglect became public policy in all States by 1965 with the passage of the first child abuse reporting law, which only required physicians to report physical abuse. Since that time, neglect, emotional abuse, and sexual abuse have been recognized as injurious to a child's physical and mental health, and reporting laws were amended to include these forms of child maltreatment. Those professionals required by law to make child abuse reports also expanded over the years to include teachers, nurses, mental health professionals, social workers, school custodians, day care providers, and others who are in regular contact with children.

Mental health professionals are now required by law in all States to report child abuse and neglect. The specific language of the States' reporting laws varies, but they typically cover circumstances when one acquires knowledge of or observes a child under conditions that give rise to a reasonable suspicion of child abuse and/or neglect; or, when one has knowledge of or observes a child whom he or she knows has been the victim of child abuse and neglect. "Reasonable suspicion" definitions may vary, but it is generally considered to occur when it is objectively reasonable for a person to entertain such a suspicion, based on his or her training and experience.

Child abuse must be reported when one who is a legally mandated reporter, has knowledge of or observes a child in his or her professional capacity, or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse.

The Reporting Mandate to Whom You Must Report

The report must be made to a "child protective agency." A child protective agency is a county welfare or probation department or a police or sheriff's department. Exceptions are reports by commercial print and photographic print processors, which are made to the law enforcement agency having jurisdiction. The mandated reporter must report the known or suspected incidence of child abuse to a child protective agency immediately or as soon as practically possible by telephone. You will speak to the social worker or law enforcement officer on duty.

Mandated reporters, however, are not legally required to tell involved individuals that a report is about to be made. The law does not require mandated reporters to tell the parents that a report is being made; however, in the majority of cases, advising the client is therapeutically advisable. First, the therapist is employing clinical leverage by using authority to set a firm and necessary limit. Reporting child abuse responds to the parents' nonverbal plea for help. The therapist can reassure the clients that steps will be taken to help the parents regain control so that the abuse does not lead to serious injury or emotional trauma to the child. Second, if the therapist does not mention the report, there is secrecy and tension, which may result in the clients' feelings of suspicion, isolation, or betrayal. In some cases, reporting may elicit an extreme response from the clients. It is contra-indicated to inform parents about the report if the individual seems psychotic, has poor impulse control coupled with a history of violent behavior, has a problem with alcohol or drugs, or is likely to flee. It can be very beneficial to give clients the opportunity to make the reports themselves in the therapist's presence. A self-report, however, does not negate the therapist's mandate to report.

Health practitioners, including MFTs, psychologists, professional counselors and social workers, are legally mandated reporters. Other legally mandated reporters include child care custodians, teachers, teacher's assistants, employees of child protective agencies and commercial film and photographic print processors. Legally mandated reporters are required to give their names.

Child abuse is defined as “a physical injury which is inflicted by other than accidental means on a child by another person.” Child abuse also means the sexual abuse of a child or any act or omission, willful cruelty or unjustifiable punishment of a child, or unlawful corporal punishment or injury. Child abuse also means the neglect of a child or abuse in out-of-home care. Child abuse does not include any injury caused by reasonable and necessary force used by a peace officer . Abuse must be reported “even if a suspected child abuse victim has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy.”

Please keep in mind that your responsibility is only to report suspected abuse, not investigate it. Your attempts to investigate may have unforeseen negative impacts on the child and family. Leave it for the child welfare professionals.

The following types of abuse must be reported by legally mandated reporters:

Physical Abuse: Physical injury inflicted by other than accidental means.
Sexual Abuse: Sexual abuse includes sexual assault and sexual exploitation.

Sexual assault is defined as:

Rape and rape in concert: This includes any forced sexual activity with anyone under age 18, or helping someone else rape a minor.

Incest: Incest is any sexual activity between parents and children, ancestors and descendants, siblings and between uncles or nieces and aunts or nephews.

Oral copulation and sodomy

Lewd and lascivious acts upon a child under the age of 14: This refers to any sexual touching or intercourse with a male or female child under the age of 14, even if it is consensual. If “lewd and lascivious” behavior occurring between minors, when each is under the age of 14 years, is not reportable, as long as the minors are of roughly the same age and there is no coercion involved.  However, lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more than 10 years old than the victim is reportable.

Child molestation

Sexual Explotation - Conduct depicting a minor engaged in obscene acts, including preparing, selling or distributing the obscene matter and/or employing a minor to perform obscene acts; any person knowingly promoting, aiding or assisting, employing, using, persuading, inducing or coercing a child, or any parent or guardian of a child under his or her control knowingly permitting or encouraging a child  to engage in or assisting either to engage in prostitution or a live performance involving obscene sexual conduct or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, picture or other pictorial depiction involving obscene sexual conduct for commercial purposes; any person depicting a child in or who knowingly developing, duplicating, printing or exchanging any film, photograph, videotape, negative or slide in which a child is engaged in an act of obscene sexual conduct.

Severe and General Neglect: Acts or omissions committed by a person responsible for a child that harm or threaten to harm the child's health or welfare.

Severe neglect: “the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive.”  Severe neglect also means those situations of neglect where “any person having the care or custody of a child willfully causes or permits the person or health of the child such that his or her person or health is endangered including the intentional failure to provide adequate food, clothing, shelter or medical care.”

General neglect: This is defined as “the negligent failure of a person having the care or custody of a child to provide adequate, food, clothing, shelter, medical care or supervision where no physical injury has occurred.”

Willful Cruelty and Unjustifiable Punishment: This refers to situations in which “any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering.

Corporal Punishment and Injury: This refers to “a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition.”

If a therapist hears about child abuse from a third party, and this raised a reasonable suspicion of abuse, the therapist must make a report if the information was revealed to the therapist within their professional capacity.

Confidentiality: The identity of all reporters is considered confidential and is disclosed only between child protective agencies.

Immunity: Mandated reporters have immunity from criminal and civil liability for reporting as required.

Any other person who reports a known or suspected case of child abuse is also protected from civil and criminal liability, unless it can be proven that the person deliberately made a false report.

Privilege: The Child Abuse Reporting Law takes precedence over laws governing the psychotherapist-patient privilege.

Failure to Report: A failure to report known or suspected child abuse when mandated to do so is considered a misdemeanor and is punishable by a term in jail not to exceed six months or by a fine not to exceed $1,000 or by both.

Elder and Dependent Adult Abuse Reporting

Mandated Reports: A mandated reporter must report a known or suspected instance of elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she (1) has observed or has knowledge of an incident that reasonably appears to be physical abuse, neglect, financial abuse, abandonment, abduction, or isolation; (2) is told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, neglect, financial abuse, abandonment, abduction, or isolation; or (3) reasonably suspects abuse.

Optional Reports: Mandated reporters may report a known or suspected instance of elder or dependent adult abuse when they have knowledge of or reasonably suspect that a form of elder or dependent adult abuse for which a report is not mandated has been inflicted upon an elder or dependent adult or that the elder or dependent adult's emotional well-being is threatened in any other way.

Definition of Elder: An “elder” is a person who is age 65 years or older.

Definition of Dependent Adult: a dependent adult is a person, between the ages of 18 years and 64 years, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.

What Must Be Reported: Under the current law, mandated reporters, including therapists, are now required to report the following:

Instances of known and reasonably suspected physical abuse of an elder or dependent adult. Instances of known and reasonably suspected neglect, financial abuse, abandonment, abduction, and/or isolation of an elder or dependent adult, and any other treatment that results in physical harm, pain, or mental suffering.

As a mandated reporter, a psychotherapist is required to make a report of known or suspected elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she has observed or has knowledge of an incident that reasonably appears to be abuse, is told by an elder or dependent adult that he or she has experienced behavior constituting abuse; and/or reasonably suspects abuse.

Abuse of an elder or dependent adult includes the following categories: Physical abuse, neglect, financial abuse, abandonment, abduction, isolation, and any other form of treatment that results in physical harm, pain, or mental suffering. Mental suffering may consist of fear, confusion, severe depression, agitation, or other serious emotional distress caused by threats, harassment, or other forms of intimidating behavior.

Physical Abuse includes assault, assault with a deadly weapon or with force likely to cause great bodily injury; battery; sexual assault, unreasonable physical restraint; prolonged or continual deprivation of water or food; and the use of physical or chemical restraint for punishment, for a period of time beyond that for which the medication was ordered through instructions from a licensed physician or surgeon caring for the elder or dependent adult, and/or for any purpose not authorized by the elder or dependent adult's physician or surgeon.

Neglect refers to the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a similar position would provide. Neglect also includes self-neglect, the negligent failure of an elder or dependent adult to provide a reasonable degree of care to himself or herself.

Specific examples of neglect include the failure to assist in personal hygiene or in the provision of food, clothing, or shelte,; the failure to provide medical care for physical or mental health needs and the failure to prevent malnutrition or dehydration.

Financial Abuse means concealing, taking, or appropriating an elder or dependent adult's property or money to any wrongful use or with the intent to defraud.

Abandonment, desertion or willful abandonment by a person having the care or custody of the elder or dependent adult person under circumstances in which a reasonable person would continue to provide care and custody.

Isolation, deliberately preventing an elder or dependent adult from receiving his or her mail or phone calls. False imprisonment; and/or the physical restraint of an elder or dependent adult for the purpose of preventing him or her from meeting with his or her visitors.

Reporting Elder Abuse

Reports of known or reasonably suspected elder or dependent adult abuse must be filed by telephone immediately or as soon as practically possible. A written report must then be sent within two working days.

Reporters should generally make reports to their county's adult protective agency or a local law enforcement agency. There are two exceptions to this, however: First, if the abuse occurred in a state mental health hospital or state developmental center, the report should be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services or to the local law enforcement agency. Second, if the abuse occurred in a long-term care facility (other than a state mental hospital or a state developmental center), reports should be made to the local ombudsman or to the local law enforcement agency.

Any person legally required to report elder or dependent adult abuse who knowingly fails to report can be found guilty of a misdemeanor that is punishable by not more than six months in the county jail or a fine not to exceed $1,000 or both imprisonment and a fine. A therapist who fails to make a timely mandated elder or dependent adult abuse report may also face disciplinary action by their governing board and civil action for damages. The law provides that no person required to make a report of elder or dependent adult abuse shall be criminally or civilly liable for such a report, as long as it cannot be proven that the report was made falsely.

Treatment of Minors (Please check the laws pertaining to treatment of minors in your state. The laws do vary from state to state)

Minors and Privilege: The law designates that minors hold privilege. However, except in special circumstances, the parents of a non-emancipated minor in treatment have the right to waive the privilege for the minor client.

The confusion over this issue stems from the fact that Evidence Code 1013 refers to clients with guardians or conservators as not holding the privilege. Most courts have interpreted this to mean that minors do NOT hold the privilege, or do not have the right to waive the privilege. Parents are, therefore, recognized as having the right to waive the privilege for the minor client, even though the minor legally has the privilege. However, recent cases (i.e., in re. Daniel, 1990) have upheld that the privilege belongs to the child, as the patient.

This means that, in a legal proceeding, regardless of the minor's wishes and despite the fact that the minor holds privilege, his or her parents could permit the release of information about the minor's treatment.

The parents also have a legal right to access information about their minor's treatment. This is true even of noncustodial parents. At the same time, in situations in which parental access to a minor's records “would have a detrimental effect on the provider's professional relationship with a minor patient or the minor's physical safety or psychological well-being, a therapist is legally permitted to deny parental access to those  records.” Therapists have to take steps to maintain a careful balance between a minor's legal and ethical right to a confidential relationship and a parent's legal right to access information.

Emancipated minors are treated legally as adults and, thus, may be treated without parental permission.

Therapists can treat minors age 12 or over without parental permission when the minor is mature enough to participate intelligently in mental health treatment or counseling and would present a serious danger of physical or mental harm to him or herself or others without treatment or counseling or is the alleged victim of incest or child abuse. The minor does hold privilege when being treated without parental consent (unless he or she has a guardian or foster parent.)  However, when treating minors under these circumstances, the therapist can act as the “claimer” of the privilege, but must obtain the minor's permission in order to access the minor's medical records.

A therapist should protect the confidence of minors, even from the minors' parents. Therefore, when working with a minor with parental knowledge and consent, a therapist should, at the beginning of therapy, clearly outline for both the parents and the minor, his or her policies with regard to confidentiality.

The parent or guardian of a minor has the right to assert privilege on behalf of the minor, except when the minor is a victim of a crime or when the therapist is seeing the minor without parental consent.

Parents also have a legal right to inspect a therapist's records regarding the child in treatment. However, therapists can deny the parents access to these records of a minor in the following circumstance: Where the health care provider determines that access to the patient records requested by the representative would have a detrimental effect on the provider's professional relationship with the minor patient or the minor's physical safety or psychological well-being.

The parents also have the right to waive the privilege, which might require the therapist to testify in a legal proceeding regarding the content of sessions with a minor client. This is true even if the minor client does not want the therapist to testify. Further, when communication of information involves a non-courtroom situation, it would also be the parents, not the child, who determine whether or not the information will be released.

Release of treatment information about minors becomes more complex when noncustodial parent are involved. While only a custodial parent may give consent to treatment, the law stipulates that “Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, shall not be denied to a parent because such parent is not the child's custodial parent" When dealing with requests from either custodial or noncustodial parents, the therapist has an ethical obligation to act in the best interests of the minor and would not reveal information about the client if doing so would cause harm to the client.

A minor may become emancipated if they legally marry, enlists in the military or files an emancipation petition with the courts stating that he or she is at least 14 years of age, is willingly living separate and apart from parents or guardians with their consent or acquiescence, is managing his or her own financial affairs and is not deriving illegal income. The court will grant the petition unless it judges that emancipation would be contrary to the minor's best interests.

Legally, minors under age 12 are considered essentially unable to make their own choices. Therefore, minors under the age of 12 may not receive any type of treatment without parental consent. There is one exception, all minors, regardless of their age, may consent to hospital, medical and surgical care related to the prevention or treatment of pregnancy. However, hospital, medical and surgical care does not include “mental health treatment or counseling.”

Minors age 12 or over, on the other hand, can receive psychological services without parental knowledge and consent under the circumstances defined by law. Such treatment does not include electroshock therapy, psychosurgery or psychotropic drugs.

When a therapist determines that it is legal and appropriate to treat a minor age 12 or over without parental consent, there are certain procedures that he or she must follow. According to California state law, the therapist must state in the record of the minor the date and time that contact with the minor's parent or legal guardian was attempted and whether the contact was successful or unsuccessful, or state why it  was not appropriate to contact the parent or legal guardian. In addition, the law specifies that the parent(s) of the minor is not responsible for the expenses of treatment if the parent(s) of the minor does not give consent for treatment.

When a therapist treats a minor age 12 or over without parental consent or knowledge, the therapist can act as the claimer of the privilege. This claim of privilege does not extend beyond the therapeutic setting. The therapist would not, for example, be able to obtain the minor client's medical records. To get the records, he or she would have to get the minor client's consent; a client age 12 or over, in treatment without parental knowledge or consent for reasons defined in the law, may sign an authorization for release of his or her medical records.

Sex With a Client is Illegal: Psychotherapists can be held liable, civilly and criminally, for engaging in sexual relations with their clients. Civil liability can result if a therapist engages in sex with a former client prior to two years after the termination of therapy. Criminal liability can result if a therapist engages in sex with a current client or if he or she terminates a therapeutic relationship with a client for the purposes of beginning a sexual relationship with that client. In addition, under licensing laws, a clinician who has sex with a client can have his or her license revoked.

b. Your Legal Responsibilities When a Client Reveals a Sexual Relationship With a Previous Therapist: When a client reveals a previous or ongoing sexual relationship with his or her former or other therapist, the client's subsequent or other therapist has a legal obligation to give the client a brochure that explains the client's rights and responsibilities. Sex with clients is wrong and prohibited by ethical and legal standards. A psychotherapist who engages in sexual activity with a client may have his or her license revoked.

In recent years, two additional laws have been enacted with regard to psychotherapist sex with a client. Although both C.C. 43.93 and B.&P.C. 729 clearly prohibit sexual contact with a client currently in therapy, they are less consistent with regard to whether sexual contact is permitted with former clients. At this time, in accordance with C.C. 43.93, therapists are civilly liable when they engage in sexual relations with former clients prior to two years after the termination of therapy. According to B.&P.C. 729, criminal liability in such cases results only when therapists terminate therapy solely for the purpose of engaging in sexual relations with a client.

In effect as of January 1, 1988, this law creates a separate cause of action for psychotherapist sex with a patient. A client has a cause for civil action against a psychotherapist when sexual contact occurs during the course of therapy, within two years following termination of therapy and/or by means of deception. This law also requires the therapist to give a brochure that explains the client's right to any client that revealed prior sexual contact with their therapist. Failure to distribute this brochure is considered unprofessional conduct.

Potential consequences of conviction include imprisonment in the county jail for up to one year and fines (up to $1,000 for the first conviction and up to $5,000 for the second conviction). Under law, the first violation is treated as a misdemeanor and the second violation is treated as either a felony or a misdemeanor, according to the discretion of the court and district attorney. Further, the consent of the client may never be used as a defense.

Supervision (Please verify your states supervision requirements)

Any supervisor of MFT experience must be licensed or certified for at least two years prior to acting as a supervisor. Besides MFTs, the following licensed professionals may be supervisors: physicians certified in psychiatry by the American Board of Psychiatry and Neurology, psychologists and clinical social workers.

Registered interns employed in a private practice are prohibited from paying their employer for supervision and are to receive fair remuneration from their employer.

Unprofessional Conduct: The Business and Professions Code, Section 4982, lists examples of unprofessional conduct. Some examples of unprofessional conduct include: negligence or incompetence in the performance of marriage and family therapy; misrepresentation involving type of license held, educational credentials, professional qualification or professional affiliations; performing, or holding oneself out as being able to perform services outside the scope of the license; failing to maintain confidentiality, except as otherwise permitted or required by law; and soliciting or paying remuneration for referrals. Unprofessional conduct is punishable by revocation or suspension of a license or an intern's registration; it is also a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $2,500, or both.

Therapist should never go into business with their clients.

Required Coursework in Psychological Testing and Psychopharmacology: Business & Professions Code 4980.41(f) requires qualifying master's or doctor's degree programs leading to the MFT license to contain survey courses in psychopharmacology. These courses will be required only for those persons who begin graduate study on or after January 1, 2001.  Anyone currently in the pipeline will not be affected by this new requirement.

Record Keeping Requirement for Licensed Marriage and Family Therapists and Licensed Clinical Social Workers: the failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered is considered unprofessional conduct.

No person may, for remuneration, engage in the practice of marriage and family therapy or social work as defined by Section 4980.02, unless he or she holds a valid license as a Marriage and Family Therapist, Social Worker, or unless he is specifically exempted from such requirement, nor may he advertise himself or herself as performing the services of a marriage, family, child, domestic, or marital consultant, social worker or in any way use these or any similar titles to imply that he or she performs these services without a license as provided by this chapter.

1. When an intern employed in private practice is supervised by someone other than the employer, the supervisor must be employed by and practice at the same site as the intern's employer.

2. Interns are not to be supervised by anyone with whom they have a personal relationship. Nor should interns receive supervision from their psychotherapists.

3. Individual supervision means one supervisor and one person being supervised. The intent of law is that supervision will occur face to face.

4. Group supervision means a group of no more than eight persons being supervised by a supervisor. Two supervisors for a group of sixteen supervisees is not acceptable.

5. A supervisor may supervise an unlimited number of interns and trainees in any appropriate work setting, but is limited to supervising two interns when those interns are employed in private practice.

6. Hour requirements: During each week in which experience is claimed, the intern must have at least one hour of individual supervision or two hours of group supervision, for each work setting. Three hours is the maximum amount of supervision that can be credited during any single week. Group supervision is optional, but the intern must have at least one hour of individual supervision per week (the weeks need not be consecutive) for a minimum of 52 weeks.

The following laws outline the possible penalties for unprofessional conduct and list examples of such conduct:

B&PC 4982 (Denial, Suspension, Revocation, Grounds)

The Board may refuse to issue an intern registration or a license or may suspend or revoke the license or intern registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct. Unprofessional conduct shall include, but not be limited to:

(a) The conviction of a crime substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, or duties of a licensee or under this chapter. A plea or verdict of guilty or a following a plea of nolo contendere made to a charge substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter shall be deemed to be a conviction within the meaning of this section. The board may order any license or registration suspended or revoked, or may decline to issue a license or registration when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or, when an order granting probation is made suspending the imposition  of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing any such person to withdraw a plea of guilty and enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.

(b) Securing a license or registration by fraud, deceit, or misrepresentation on any application for licensure or registration submitted to the board, whether engaged in by an applicant for a license or registration, or by a licensee in support of any application for licensure or registration.

(c) Administering to himself or herself any controlled substance or using of any of the dangerous drugs specified in Section 4211, or of any alcoholic beverage to the extent, or in such manner, as to be dangerous or injurious to the person applying for a registration or license or holding a registration or license under this chapter, or to any other person, or to the public, or, to the extent that such use impairs the ability of such person applying for or holding a registration or license to conduct with safety to the public the practice authorized by the registration or license, or the conviction of more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this subdivision, or any combination thereof. The board shall deny an application for a registration or license or revoke the license or registration of any person other than one who is licensed as a physician and surgeon, who uses or offers to use drugs in the course of performing marriage and family therapy services.

(d) Gross negligence or incompetence in the performance of marriage and family therapy.

(e) Violating, attempting to violate, or conspiring to violate any of the provisions of this chapter or any regulation adopted by the board.

(f) Misrepresentation as to the type or status of a license or registration held by the person, or otherwise misrepresenting or permitting misrepresentation of his or her education, professional qualifications, or professional affiliations to any person or entity.

(g) Impersonation of another by any licensee, registrant, or applicant for a license or registration, or, in the case of a licensee, allowing any other person to use his or her license or registration.

(h) Aiding or abetting any unlicensed or unregistered person to engage in conduct for which a license or registration is required under this chapter.

(i) Intentionally or recklessly causing physical or emotional harm to any client.

(j) The commission of any dishonest, corrupt, or fraudulent act substantially related to the qualifications, functions, or duties of a licensee or registrant.

(k) Engaging in sexual relations with a client, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.

(l) Performing, or holding one's self out as being able to perform, or offering to perform or permitting, any trainee or intern under supervision to perform any professional services beyond the scope of the license authorized by this chapter.

(m) Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.

(n) Prior to the commencement of treatment, failing to disclose to the client or prospective client the fee to be charged for the professional services, or the basis upon which that fee will be computed.

(o) Paying, accepting, or soliciting any consideration, compensation, or remuneration, whether monetary or otherwise, for the referral of professional clients. All consideration, compensation, or remuneration shall be in relation to professional counseling services actually provided by the licensee. Nothing in this subdivision shall prevent collaboration among two or more licensees in a case or cases. However, no fee shall be charged for that collaboration, except when disclosure of the fee has been made in compliance with subdivision (n).

(p) Advertising in a manner which is false, misleading, or deceptive.

(q) Reproduction or description in public, or in any publication subject to general public distribution, of any psychological test or other assessment device, the value of which depends in whole or in part on the naiveté of the subject, in ways that might invalidate the test or device.

(r) Any conduct in the supervision of any intern or trainee by any licensee that violates this chapter or any rules or regulations adopted by the board.

B&PC 4983 (Penalties)

Any person who violates any of the provisions of this chapter is guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2500), or by both.

4983.1 (Proceedings, Court Action)

In addition to other proceedings provided for in this chapter, whenever any person has engaged, or is about to engage, in any acts or practices which constitute, or will constitute, an offense against this chapter, the superior court in and for the county wherein the acts or practices take place, or are about to take place, may issue an injunction, or other appropriate order, restraining such conduct on application of the board, the Attorney General, or the district attorney of the county.

HIPAA

Covered Entities:

 All health professionals who send information via electronic transmission are considered “Covered Entities” and all HIPAA rules apply to them. What one must do as a Covered Entity to become compliant with HIPAA will be covered here. However, this should not be seen as covering all aspects of compliance.

Individual practitioners may have practices which differ in important ways from the majority of other practitioners and may require additional changes in their operating procedures to become compliant. Also, as the task force continues its work on integrating laws governing the health professions with HIPAA regulations, new laws may become an additional part of what one must do to become or remain compliant. Continue to check with your professional organizations and licensing boards for updates.

Exempt Mental Health Professionals:

 If you are a health care provider who never transmits electronic data regarding patients you are not required, at this time, to comply with the HIPAA regulations and are not considered a “Covered Entity.” However, HIPAA is very quickly becoming the standard of care by which health care providers’ office practices are regulated. In other words, you may be found to be negligent with your patient’s records and confidentiality if you do not move your office practices into compliance.

Business Associate:

 A business associate is a person or entity other than the therapist’s immediate workforce which receives confidential or PHI information from the therapist and provides services to the therapist. Among others, these may include a bookkeeper, lawyer, accountant, collection agency, answering service, computer service, or answering service. Business associates are not considered Covered Entities by HIPAA. The PHI may be given to a business associate only after the therapist has obtained a written contract with that person who notifies them that they must safeguard confidential information and how to do so appropriately. Samples of business associate contracts may be obtained online:

It is ultimately the therapist’s responsibility to be certain that the business associate follows the contract. Any subcontractors hired by the business associate must also sign a written contract agreeing to safeguard the PHI. If a business associate is found to have violated the contract, the therapist will need to make certain that steps are taken to repair the problem. If the problem is irreparable or if additional problems occur, the therapist may have to terminate the business associate and/or report the problem to HHS.

Another therapist to whom patients are referred during one’s absence is not considered a business associate. Additionally, janitorial, plumbing, electrical, or other repairmen are not considered business associates. Any postal service is not a business associate either under HIPAA. Business associate relationships are also not created by federal or state oversight committees such as the Medicare Peer Review. A therapist should not consider other therapists within one’s own practice or a consultant who is used for treatment purposes as a business associate. None of these are considered Covered Entities by HIPAA.

Becoming Compliant with HIPAA:

 Luckily, for a solo or small group of health professionals, the process of achieving HIPAA compliance is a fairly easy task, particularly if you have already been following the laws for privacy within your field. HIPAA has required many more administrative responsibilities for large corporations such as hospitals and large clinics. They are likely to need a full-time Privacy Officer while within a smaller private practice, you can designate yourself as the Privacy officer and take care of the necessary changes without a great deal of difficulty.

There are, however, several important changes which should be made as soon as possible. It is likely you will need to take and keep two sets of notes, learn new rules about patient’s access to their clinical records, learn the rules about the rights patients now have to amend their records, and develop new forms for Consent for services and Authorization by the patient to have others see their records or otherwise consult with you about your patient. Additionally, there are new rules about how one must secure records in computers. Unfortunately, if you somehow trigger a HIPAA audit, the likelihood of a lawsuit or fines is high. Additionally, you must be in full compliance immediately since there is no grace period.

Because HIPAA may become the general law which is followed by all states, it is likely that if you are not in compliance you will be open to a lawsuit under a state law you may have overlooked or which may have become law since your last law and ethics class.

Steps to HIPAA Compliance:

These steps apply only to solo practices or those of small groups and should not be taken to apply to hospitals or large clinics. The rules for these entities are different in important ways.

 1. Designate a Privacy Officer: This person is responsible for meeting HIPAA requirements by developing the necessary new documents, computer storage of patient records, training staff to comply with regulations, and review the changes. The privacy officer should post or provide each patient, whether new or continuing with a Notice of Privacy Practices. Additionally, an announcement should be placed in a public area which includes the following:

Our Privacy Officer is (name of person). The Privacy Officer:

(a) Can answer your questions about our privacy practices;

(b) Can accept any complaints you have about our privacy practices;

(c) Can give you information on how to file a complaint.

You can call the Privacy Officer at (enter your office number.)

2. Comply with the Privacy Rule: The Privacy Rule applies to all Protected Health Information (PHI will be explained in #3 below.)Therapists are required to inform all patients of office privacy policies and how they are implemented. The patient’s records must be secured. Release of patient records for any reason either by the therapist, business associates, or staff cannot be done without informing the patient and obtaining the patient’s consent. These will be explained more thoroughly and suggestions for appropriate forms are available. A list of government sponsored and association sponsored websites will be provided at the end of this course.

3. PHI is Protected Health Information: Information which you have about your patient which identifies them as an individual when it is transmitted is PHI. All such material must be treated with utmost caution and respect for the rights of your patient. When the patient is identified by name, Social Security Number, or other means which make the patient identifiable by others requires that the material be classified as PHI. If the information contains PHI, all past, present, and future physical or mental health diagnoses, treatment of any sort, and billing or payment become confidential material.

It is crucial that all material containing PHI or information which identifies a patient be protected within the office. It is advisable to personally chart the flow of this information through your office. For example:

• Is incoming mail secure and protected from unauthorized disclosure?

• Is the information created within the office stored and protected?

• Is the information recorded in other areas, such as on or off-site billing personnel have storage which is protected from unauthorized disclosure?

• Is all incoming and outgoing electronic transmission secure.

HIPAA also requires that PHI material be available to be legitimately shared, sent out, or given to those who are authorized. If you personally see where the information comes in, is stored, used, created, and released, you will feel more confident that there is protection for these documents all along the line of transfer. It is helpful to some therapists to pretend these are their own personal records when deciding whether or not the records of their patients are securely protected throughout the process.

HIPAA requires that PHI be available within five days to an authorized agency under law.

The consequences of failing to be in compliance with HIPAA can be severe. Fines of up to $250,000 and imprisonment for up to ten years or both can be levied against an individual who knowingly perpetrates “wrongful disclosure of individual, identifiable, health information. Additionally the Office of Civil Rights at the US Department of Health and Human Services can initiate administrative action against non-compliant therapists. Patients can also file lawsuits if a therapist is non-compliant because their private health information is endangered. There may also be civil penalties but these cannot exceed $25,000 in one year.

Malpractice

It is important to note that regardless of your behavior a patient may decide to sue you for malpractice. This is a frightening prospect, since the grounds for filing a lawsuit against you are so vague that even the finest, most ethical clinicians find themselves involved in litigation which threatens to take away their license, their means of livelihood, and substantial sums of money.

It is also important to realize that despite paying for malpractice insurance, the insurer may determine they would prefer to pay the patient who is bringing the suit rather than spend the money on a lengthy trial. Your insurance carrier may encourage you to agree to settle for a sum without admitting guilt. You may or may not be told that the payment to the client is recorded and permanently kept on file at the National Data Bank where insurance companies and other parties with an interest in the ethics of your practice. Once you are in the National Data Bank, you have to report it each time you renew your membership to any insurance company as a preferred provider. 

The development of an ethical practice, however, may help you to avoid some of the more important pitfalls clinicians make. An excellent resource is the on-line source: http://www.kspope.com/index.php . His wisdom regarding the lifelong pursuit of ethics in one's practice is a very valid approach. Regardless of how many times you read through the law, regardless of how many classes you take in ethics, regardless of how well you follow the rules of the profession, make no mistake, this is a path you will need to pursue consistently throughout your career.

To be sued successfully for malpractice in a civil court, the patient must prove that you have breached the standard of care (Black, 1996). There are four parts which must be seen by the court to have been met for the malpractice suit to proceed.

(1) In some way as a clinician you have established an agreement between yourself and your patient that you will work together in a therapeutic relationship. The law does not define this in terms of the length of time you have seen the patient, whether or not the patient has paid you. It is entirely the responsibility of the court to determine whether you have established a Duty of Care with the patient.

(2) The work you have done with this patient will be compared to the Standard of Care. This is also defined by the court based on what the court finds is the typical level of proficiency which would be shown by a therapist under similar circumstances. It may be defined or suggested by an ethics code, a state standard, or case law. There is no clearly defined standard of care since both you and the circumstances in which the act occurred are unique.

(3) The patient must show that there has been some Demonstrable Harm. Although some texts may imply that it is difficult to show demonstrable harm if it is psychological in nature since the patient began treatment presumably due to harmful or painful problems which they hoped to cure, again, it is entirely the duty of the court to determine if you caused harm and, if so, how much harm was caused. The amount of harm caused whether psychological, physical, or financial can only be remedied in a civil suit by money. The court also decides how much money should be given the patient (now plaintiff) for the harm you have caused.

(4)The patient must also prove the clinician was directly responsible or the Proximate Cause for the harm which was done.  So, the patient must prove that the therapist had an established relationship with the patient which would prove there was a duty to care, was working below the standard of care, which caused demonstrable harm to the patient which could only have been a direct result of the clinician's actions.

Despite these levels of proof which sound difficult to attain, many therapists are sued successfully or have out-of-court settlements against them each year. Following a successful suit or settlement, one should expect an investigator from the Board of Psychology to visit to determine whether or not the actions taken by the therapist were egregious enough to sanction them by loss or suspension of their license, additional classes to educate the therapist and attempt to prevent further problems, or other measures. This is a time you would use your malpractice insurance to pay an attorney to defend you against the state licensing board.

Clinicians tend to develop methods which they hope will keep them from finding themselves in court. It is difficult to know which methods work because there is no measure of who has not been sued and why that has not happened. Common sense may be the best guideline.

First, it is important to take care of yourself. Therapist who are having problems within their own families, use alcohol or drugs inappropriately, are having emotional problems, or simply need a vacation are the most likely people to make minor and major errors in their treatment of patients. This may occur from the distraction caused by the therapist's own problems or from unconscious motives which are more likely to be enacted when one is not at one's best and inhibitions are lowered.

Second, stay in touch with changes in laws through professional organizations. Maintain your memberships and attend meetings on a regular basis. This will also help you make and maintain friendships with other practicing clinicians. You are likely to find it is helpful to know someone you trust for a consultation if you do find yourself feeling that a patient may cause problems for you. Your friends may also tell you in a much nicer way than the licensing board that you need to take a break from work.

Third, take frequent breaks from work. Your patients will gripe, your spouse will worry about the money, and your colleagues will be jealous. You will have a better chance of staying on top of your cases and come to work with a smile.

Fourth, see a therapist. You went to graduate school and got a Ph.D. You have the right to get some personal psychotherapy and/or/psychoanalysis without feeling like you're so crazy you would rather no one else knew. You might even start feeling better.

Fifth, look at your mail at a time when you can do some reading. Instead of stacking the journal you just got, scan through the articles and read the ones that interest you. You could impress your colleagues at professional meetings by dropping names and you could even try out some of the new techniques you read about and develop some skill with timing.

Sixth, if you have a patient walk in who describes a history of lawsuits, suicide attempts, and has a gambling problem which might cost him/her more than one can afford and you feel the acid turn in your stomach and your headache begin, check on the patient's current level of suicide risk then on your own level of expertise in managing difficult patients. Do not agree to see anyone who walks in the door. Make sure you have some experience with the presenting problem, that you know people in the field who are experts to whom you can turn if serious problems begin to arise, and realize you are free to refer the patient to someone who may be better suited to treat him or her. Do not take on more patients than you can reasonably manage. If you see a patient who is challenging for you for any reason, seek supervision or discuss the patient with colleagues, preferably in a formal manner. We all learn from the work we do with our patients and our toughest patients teach us the most, however, to provide the patient with the best care and to take care of yourself, seek information from those around you, especially experts. Reading journals and books on the topic is also very useful but it can lead to a false sense that you understand the problems you face with that particular patient when you only understand the issue in a broad sense. If you can, create a formal or informal group of colleagues who meet on a regular basis to discuss difficult patients as well as successes. While in some ways we compete for the same patient population, actually all clinicians are much better in some areas than others and it is incumbent on the practitioner to know where they stand in their ability to treat different sorts of difficult patients.

Seventh, and most importantly, do your paperwork. It gives you time to reflect on what you are doing with the patient, whether they need to be referred for medication or other care you cannot provide, and it relieves you of all the guilt you have felt for not keeping up with it. It is also illegal to fail to do it. Some people find they do this best when they complete a formal note in the 10 to 15 minutes between sessions while others find they need to lay out an hour several times weekly or a long afternoon to get it done. Do not underestimate how much time this takes. Completing HIPAA notes can become very quick and efficient if you have a system and do them regularly. On the other hand, trying to recreate the important points of a session from hastily sketched notes during an intense session at the end of the week is nearly impossible. You remember that it was an important session but often lose the crucial meaning which was derived from the work done that day. The main idea to remember is not to fail to do notes until you find yourself served a subpoena by a court or a disability claimant. The notes you create at those times are not beneficial to you or your patient because they lack credibility which comes from a case note which is written soon after the session. While all this seems self-evident, it is important to recognize that keeping notes for anything other than an aid to treatment in most cases was rare until HIPAA was imposed only a few years ago. Many of us had become quite comfortable with brief, non-HIPAA compliant notes and, although we plan to change that habit, have not yet done so. Do it now. You will sleep better.

Last, know your limitations. Refer the patient when you have no experience or training in treating the presenting problem. Refer them if they scare you and you feel you will not be able to find a colleague or supervisor who can help you sort out whether or not you should give this patient a try and if you have someone to help if you find you have trouble. Refer the patient to a physician when you have an odd feeling that the problem does not sound solely psychological. Always refer them if there is any question about whether medication would be helpful. If they refuse, note they refused and why. Refer the patient if they remind you of Mom, Dad, your children, or your spouse. Refer them immediately if you feel they sound just like you. If you smell alcohol and do not regularly treat people with substance abuse, refer them to someone who does. Refer patients who abuse other substances if that is not an area of expertise or one in which you want to develop expertise. Having a drug or alcohol problem may seem minor and secondary to the primary diagnosis but it is amazing how frequently a drug or alcohol problem becomes the main problem very quickly or the main reason why no progress is occurring in therapy. Many of us had the fortune to be trained by masters of the craft of psychotherapy either during or after graduate school. Many of us have become the new masters of the craft. Still, for each and every one of us there are people who walk through our doors as patients and walk out as potential plaintiffs. Even the grand old masters have this happen so it can certainly happen to you.

Malpractice and the Licensing Board

Try to avoid doing anything which will cause you to have problems with the Licensing Board. Get your Continuing Education Units done on time and make sure they count. Keep up on your paperwork. The State Board can require you to produce case notes in a very short time. If the Licensing Board sends you any sort of inquiry, do not take it lightly. Consult with the best attorney you possibly can even if it means traveling. Preferably find someone who teaches ethics and is both a therapist and an attorney. Make sure they have experience. Do not just dash off a letter which answers the questions asked by the board. If they have written you and asked for a response, it is a serious inquiry about your treatment practices. The Licensing Board takes your responses seriously and what may appear to be a simple misunderstanding between yourself and your patient could result in having to defend yourself and your license before a member of the Licensing Board. Make sure you have Malpractice insurance to cover the fee for an attorney to defend you. Being sanctioned by the Licensing Board is a public process and even if you do not lose your license temporarily and have to take additional classes or other tasks to bring your standard of practice up to that of other therapists, you may lose your referral base. You will also be likely to find yourself the subject of gossip. The Licensing Board also may determine that you should lose your license to practice psychology permanently. This does not preclude having criminal or civil charges brought against you by your patient(s). All of this is quite public also.

Malpractice and Ethics Committees

Try to avoid actions by ethics committees by following the rules and guidelines for practice. Make it a habit to check in on the APA web site and the Licensing Board Web site on a regular basis so you know when laws are changing. Unfortunately, some therapists were convicted of violating ethics of their profession when they were following what had been a typical pattern but was in the process of changing. When you are uncertain about the rules, ask. Get answers in writing if possible. Know the name of the person with whom you spoke regarding how to most appropriately do tasks or render treatment. Consult with other psychologists and inform them of the difficulties you face. Seek formal supervision. Seek legal consultation. The fee you spend may save your livelihood. Be wary of dual relationships. Be wary of any sort of variation in billing and collecting fees. Be aware of what you put in writing and that the information can be passed on to others even without your knowledge or consent, leaving you in a legal limbo which will certainly require an attorney.

Malpractice due to Criminal Allegations

The Attorney General is involved in these proceedings. They are the most serious offenses, usually involving fraud, collusion in criminal activities, and a variety of criminal offences. Psychologists, while held to a higher legal standard, are people and become involved in illegal schemes just as other people do. In your practice, you do many things totally on your own and you are aware that within your office what occurs is privileged information. This requires that you set the standard higher for yourself because a small bit of cheating quickly spirals into greater corruption. Do not lie, cheat, steal or engage in any behavior which could appear to have involved illicit activities. Do not enter into relationships with your patients or partners which involve felonious behavior. Patients may see a psychologist as someone who is above the law and would not be suspected of criminal behavior. Do not see yourself in this manner and make it clear to patients who wish to have you collude with them in illegal activities that you will not do that and you must report behavior which would cause harm to others. Although psychologists are rarely involved in these activities, conviction results not only in the loss of your license, it also results in criminal prosecution and incarceration. Some of the most frequent offenses involve defrauding Medicare by claiming to have performed services which were either not performed or were not reasonable treatment for the patients involved. These have usually involved large numbers of patients.