Florida Ethics and Boundary Issues

 

1.  Describe the problematic issues associated with boundary violations.

2.  Describe how the supervisory role can be used to prevent the violation of boundaries.

3.  Identify how enactment may lead to sexual misconduct.

4.  Identify the ethical and legal principals of confidentiality.

5.  Describe confidentiality laws and the impact of those laws on the therapeutic relationship.

 

 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.

2006 Florida Statutes

CHAPTER 491

CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES

491.009  Discipline.--

(1)  The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(a)  Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department.

(b)  Having a license, registration, or certificate to practice a comparable profession revoked, suspended, or otherwise acted against, including the denial of certification or licensure by another state, territory, or country.

(c)  Being convicted or found guilty of, regardless of adjudication, or having entered a plea of nolo contendere to, a crime in any jurisdiction which directly relates to the practice of his or her profession or the ability to practice his or her profession. However, in the case of a plea of nolo contendere, the board shall allow the person who is the subject of the disciplinary proceeding to present evidence in mitigation relevant to the underlying charges and circumstances surrounding the plea.

(d)  False, deceptive, or misleading advertising or obtaining a fee or other thing of value on the representation that beneficial results from any treatment will be guaranteed.

(e)  Advertising, practicing, or attempting to practice under a name other than one's own.

(f)  Maintaining a professional association with any person who the applicant, licensee, registered intern, or certificateholder knows, or has reason to believe, is in violation of this chapter or of a rule of the department or the board.

(g)  Knowingly aiding, assisting, procuring, or advising any nonlicensed, nonregistered, or noncertified person to hold himself or herself out as licensed, registered, or certified under this chapter.

(h)  Failing to perform any statutory or legal obligation placed upon a person licensed, registered, or certified under this chapter.

(i)  Willfully making or filing a false report or record; failing to file a report or record required by state or federal law; willfully impeding or obstructing the filing of a report or record; or inducing another person to make or file a false report or record or to impede or obstruct the filing of a report or record. Such report or record includes only a report or record which requires the signature of a person licensed, registered, or certified under this chapter.

(j)  Paying a kickback, rebate, bonus, or other remuneration for receiving a patient or client, or receiving a kickback, rebate, bonus, or other remuneration for referring a patient or client to another provider of mental health care services or to a provider of health care services or goods; referring a patient or client to oneself for services on a fee-paid basis when those services are already being paid for by some other public or private entity; or entering into a reciprocal referral agreement.

(k)  Committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to s. 491.0111.

(l)  Making misleading, deceptive, untrue, or fraudulent representations in the practice of any profession licensed, registered, or certified under this chapter.

(m)  Soliciting patients or clients personally, or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.

(n)  Failing to make available to a patient or client, upon written request, copies of tests, reports, or documents in the possession or under the control of the licensee, registered intern, or certificateholder which have been prepared for and paid for by the patient or client.

(o)  Failing to respond within 30 days to a written communication from the department or the board concerning any investigation by the department or the board, or failing to make available any relevant records with respect to any investigation about the licensee's, registered intern's, or certificateholder's conduct or background.

(p)  Being unable to practice the profession for which he or she is licensed, registered, or certified under this chapter with reasonable skill or competence as a result of any mental or physical condition or by reason of illness; drunkenness; or excessive use of drugs, narcotics, chemicals, or any other substance. In enforcing this paragraph, upon a finding by the secretary, the secretary's designee, or the board that probable cause exists to believe that the licensee, registered intern, or certificateholder is unable to practice the profession because of the reasons stated in this paragraph, the department shall have the authority to compel a licensee, registered intern, or certificateholder to submit to a mental or physical examination by psychologists, physicians, or other licensees under this chapter, designated by the department or board. If the licensee, registered intern, or certificateholder refuses to comply with such order, the department's order directing the examination may be enforced by filing a petition for enforcement in the circuit court in the circuit in which the licensee, registered intern, or certificateholder resides or does business. The licensee, registered intern, or certificateholder against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee, registered intern, or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice for which he or she is licensed, registered, or certified with reasonable skill and safety to patients.

(q)  Performing any treatment or prescribing any therapy which, by the prevailing standards of the mental health professions in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.

(r)  Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee, registered intern, or certificateholder is not qualified by training or experience.

(s)  Delegating professional responsibilities to a person whom the licensee, registered intern, or certificate holder knows or has reason to know is not qualified by training or experience to perform such responsibilities.

(t)  Violating a rule relating to the regulation of the profession or a lawful order of the department or the board previously entered in a disciplinary hearing.

(u)  Failure of the licensee, registered intern, or certificateholder to maintain in confidence a communication made by a patient or client in the context of such services, except as provided in s. 491.0147.

(v)  Making public statements which are derived from test data, client contacts, or behavioral research and which identify or damage research subjects or clients.

(w)  Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

491.0112  Sexual misconduct by a psychotherapist; penalties.--

(1)  Any psychotherapist who commits sexual misconduct with a client, or former client when the professional relationship was terminated primarily for the purpose of engaging in sexual contact, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083; however, a second or subsequent offense is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Any psychotherapist who violates subsection (1) by means of therapeutic deception commits a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  The giving of consent by the client to any such act shall not be a defense to these offenses.

(4)  For the purposes of this section:

(a)  The term "psychotherapist" means any person licensed pursuant to chapter 458, chapter 459, part I of chapter 464, chapter 490, or chapter 491, or any other person who provides or purports to provide treatment, diagnosis, assessment, evaluation, or counseling of mental or emotional illness, symptom, or condition.

(b)  "Therapeutic deception" means a representation to the client that sexual contact by the psychotherapist is consistent with or part of the treatment of the client.

(c)  "Sexual misconduct" means the oral, anal, or vaginal penetration of another by, or contact with, the sexual organ of another or the anal or vaginal penetration of another by any object.

(d)  "Client" means a person to whom the services of a psychotherapist are provided.

491.012  Violations; penalty; injunction.--

(1)  It is unlawful and a violation of this chapter for any person to:

(a)  Use the following titles or any combination thereof, unless she or he holds a valid, active license as a clinical social worker issued pursuant to this chapter:

1.  "Licensed clinical social worker."

2.  "Clinical social worker."

3.  "Licensed social worker."

4.  "Psychiatric social worker."

5.  "Psychosocial worker."

(b)  Use the following titles or any combination thereof, unless she or he holds a valid, active license as a marriage and family therapist issued pursuant to this chapter:

1.  "Licensed marriage and family therapist."

2.  "Marriage and family therapist."

3.  "Marriage counselor."

4.  "Marriage consultant."

5.  "Family therapist."

6.  "Family counselor."

7.  "Family consultant."

(c)  Use the following titles or any combination thereof, unless she or he holds a valid, active license as a mental health counselor issued pursuant to this chapter:

1.  "Licensed mental health counselor."

2.  "Mental health counselor."

3.  "Mental health therapist."

4.  "Mental health consultant."

(d)  Use the terms psychotherapist, sex therapist, or juvenile sexual offender therapist unless such person is licensed pursuant to this chapter or chapter 490, or is certified under s. 464.012 as an advanced registered nurse practitioner who has been determined by the Board of Nursing as a specialist in psychiatric mental health and the use of such terms is within the scope of her or his practice based on education, training, and licensure.

(e)  Present as her or his own the clinical social work, marriage and family therapy, or mental health counseling license of another.

(f)  Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license.

(g)  Use or attempt to use a license issued pursuant to this chapter which has been revoked or is under suspension.

(h)  Knowingly conceal information relative to violations of this chapter.

(i)  Practice clinical social work in this state for compensation, unless the person holds a valid, active license to practice clinical social work issued pursuant to this chapter or is an intern registered pursuant to s. 491.0045.

(j)  Practice marriage and family therapy in this state for compensation, unless the person holds a valid, active license to practice marriage and family therapy issued pursuant to this chapter or is an intern registered pursuant to s. 491.0045.

(k)  Practice mental health counseling in this state for compensation, unless the person holds a valid, active license to practice mental health counseling issued pursuant to this chapter or is an intern registered pursuant to s. 491.0045.

(l)  Use the following titles or any combination thereof, unless he or she holds a valid registration as an intern issued pursuant to this chapter:

1.  "Registered clinical social worker intern."

2.  "Registered marriage and family therapist intern."

3.  "Registered mental health counselor intern."

(m)  Use the following titles or any combination thereof, unless he or she holds a valid provisional license issued pursuant to this chapter:

1.  "Provisional clinical social worker licensee."

2.  "Provisional marriage and family therapist licensee."

3.  "Provisional mental health counselor licensee."

(n)  Effective October 1, 2000, practice juvenile sexual offender therapy in this state, as the practice is defined in s. 491.0144, for compensation, unless the person holds an active license issued under this chapter and meets the requirements to practice juvenile sexual offender therapy. An unlicensed person may be employed by a program operated by or under contract with the Department of Juvenile Justice or the Department of Children and Family Services if the program employs a professional who is licensed under chapter 458, chapter 459, s. 490.0145, or s. 491.0144 who manages or supervises the treatment services.

(2)  It is unlawful and a violation of this chapter for any person to describe her or his services using the following terms or any derivative thereof, unless such person holds a valid, active license under this chapter or chapter 490, or is certified under s. 464.012 as an advanced registered nurse practitioner who has been determined by the Board of Nursing as a specialist in psychiatric mental health and the use of such terms is within the scope of her or his practice based on education, training, and licensure:

(a)  "Psychotherapy."

(b)  "Sex therapy."

(c)  "Sex counseling."

(d)  "Clinical social work."

(e)  "Psychiatric social work."

(f)  "Marriage and family therapy."

(g)  "Marriage and family counseling."

(h)  "Marriage counseling."

(i)  "Family counseling."

(j)  "Mental health counseling."

(3)  Any person who violates any provision of subsection (1) or subsection (2) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(4)  The department may institute appropriate judicial proceedings to enjoin violation of this section.

491.0141  Practice of hypnosis.--A person licensed under this chapter who is qualified as determined by the board may practice hypnosis as defined in s. 485.003(1). The provisions of this chapter may not be interpreted to limit or affect the right of any person qualified pursuant to chapter 485 to practice hypnosis pursuant to that chapter or to practice hypnosis for nontherapeutic purposes, so long as such person does not hold herself or himself out to the public as possessing a license issued pursuant to this chapter or use a title protected by this chapter.

491.0143  Practice of sex therapy.--Only a person licensed by this chapter who meets the qualifications set by the board may hold herself or himself out as a sex therapist. The board shall define these qualifications by rule. In establishing these qualifications, the board may refer to the sexual disorder and sexual dysfunction sections of the most current edition of the Diagnostic and Statistical Manual of the American Psychiatric Association or other relevant publications.

491.0144  The practice of juvenile sexual offender therapy.--Only a person licensed by this chapter who meets the qualifications set by the board may hold himself or herself out as a juvenile sexual offender therapist, except as provided in s. 490.0145. These qualifications shall be determined by the board. The board shall require training and coursework in the specific areas of juvenile sexual offender behaviors, treatments, and related issues. In establishing these qualifications, the board may refer to the sexual disorder and dysfunction sections of the most current edition of the Diagnostic and Statistical Manual of the American Psychiatric Association, Association for the Treatment of Sexual Abusers Practitioner's Handbook, or other relevant publications.

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.

491.0147  Confidentiality and privileged communications.--Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential. This secrecy may be waived under the following conditions:

(1)  When the person licensed or certified under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.

(2)  When the patient or client agrees to the waiver, in writing, or, when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.

(3)  When there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed or certified under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities.

491.0148  Records.--Each psychotherapist who provides services as defined in this chapter shall maintain records. The board may adopt rules defining the minimum requirements for records and reports, including content, length of time records shall be maintained, and transfer of either the records or a report of such records to a subsequent treating practitioner or other individual with written consent of the client or clients.

491.0149  Display of license; use of professional title on promotional materials.--

(1)(a)  A person licensed under this chapter as a clinical social worker, marriage and family therapist, or mental health counselor, or certified as a master social worker shall conspicuously display the valid license issued by the department or a true copy thereof at each location at which the licensee practices his or her profession.

(b)1.  A licensed clinical social worker shall include the words "licensed clinical social worker" or the letters "LCSW" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

2.  A licensed marriage and family therapist shall include the words "licensed marriage and family therapist" or the letters "LMFT" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

3.  A licensed mental health counselor shall include the words "licensed mental health counselor" or the letters "LMHC" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

(2)(a)  A person registered under this chapter as a clinical social worker intern, marriage and family therapist intern, or mental health counselor intern shall conspicuously display the valid registration issued by the department or a true copy thereof at each location at which the registered intern is completing the experience requirements.

(b)  A registered clinical social worker intern shall include the words "registered clinical social worker intern," a registered marriage and family therapist intern shall include the words "registered marriage and family therapist intern," and a registered mental health counselor intern shall include the words "registered mental health counselor intern" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the registered intern.

(3)(a)  A person provisionally licensed under this chapter as a provisional clinical social worker licensee, provisional marriage and family therapist licensee, or provisional mental health counselor licensee shall conspicuously display the valid provisional license issued by the department or a true copy thereof at each location at which the provisional licensee is providing services.

(b)  A provisional clinical social worker licensee shall include the words "provisional clinical social worker licensee," a provisional marriage and family therapist licensee shall include the words "provisional marriage and family therapist licensee," and a provisional mental health counselor licensee shall include the words "provisional mental health counselor licensee" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the provisional licensee.

Exceptions to Confidentiality

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.

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.

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.

For more information and HIPAA resources please visit the link below provided by the Department of Health and Human Services, Center for Disease Control and Prevention.

 

Dual Relationships

For both counselors and supervisors, any dual relationship is problematic if it increases the potential for exploitation or impairs professional objectivity (Kitchener, 1988). There has been greater divergence of opinion about what constitutes an inappropriate dual relationship between supervisor and counselor than between counselor and client. Ryder and Hepworth (1991), for example, stated that dual relationships between supervisors and supervisees are endemic to many educational and work contexts. Most supervisors will, in fact, have more than one relationship with their supervisees (e.g., graduate assistant, co-author, co-facilitator). The key concepts remain "exploitation" and "objectivity." Supervisors must be diligent about avoiding any situation which puts a supervisee at risk for exploitation or increases the possibility that the supervisor will be less objective. It is crucial, however, that supervisors not be intimidated into hiding dual relationships because of rigid interpretations of ethical standards. The most dangerous of scenarios is the hidden relationship. Usually, a situation can be adjusted to protect all concerned parties if consultation is sought and there is an openness to making adjustments in supervisory relationships to benefit supervisee, supervisor and, most importantly, clients.

Health care professionals are committed to promoting the welfare and well-being of the patient over and above any personal consideration. Indeed, this fiduciary obligation is one of the defining characteristics of a “profession” as such. This concept of a profession gives rise to the notion of boundaries in client-professional relationships—that is, to the notion that there are limits of ethically appropriate professional behavior. A boundary violation occurs when a health care professional’s behavior goes beyond appropriate professional limits. Boundary violations generally arise when a personal interest displaces the professional’s primary commitment to the patient’s welfare in ways that harm the patient or the patient-clinician relationship. Interactions between health care professionals and patients are ethically problematic when they can reasonably be expected to affect the care the individual or other patients receive or the health care professional’s relationships with colleagues—or when they give the appearance of doing so.

Health care professionals should:

  1. Critically examine their own actions by asking themselves the following questions:  

    Is this activity a normal, expected part of practice for members of my profession?  Might engaging in this activity compromise my relationship with this patient? With other patients? With my colleagues? With my institution? With the public?  Could this activity cause others to question my professional objectivity?  Would I want my other patients, other professionals, or the public to know that I engage in such activities?

  2. Take appropriate action if the answers to these questions indicate that an activity may violate professional ethical boundaries:  Determine if there are applicable standards.  Consult a trusted and objective peer for a second opinion about the activity.  Seek assistance from a supervisor or ethics committee. Communicate his or her concern to the individual involved.  Transfer the patient to another clinician’s care if the professional relationship has been compromised, or if avoiding the violation will damage the relationship.

  3. Be familiar with:  Relevant professional codes of ethics, standards of practice, guidelines, and position statements;  Applicable policies in their facilities; and  Laws pertaining to relationships between patients and health care professionals.

Boundaries define the limits of appropriate behavior by a professional toward his or her clients. By establishing boundaries, a health care professional creates a safe space for the therapeutic relationship to occur. Concerns about professional boundaries in the relationship between patients and health care providers—and the damage that results when boundaries are transgressed—captured public and professional attention following reports of inappropriate sexual relationships between health care professionals and patients. Relatively little attention has been paid to the “boundary question” outside this context, but many other interactions raise concerns about boundaries as well. Therapist’s need guidance if they are to avoid engaging in interactions with their patients that may prove ethically problematic.

 The notion of boundaries in the health care setting is rooted in the concept of a “profession.” While this concept is understood in several different ways in the medical and sociological literature, there is consensus regarding one of the defining characteristics of professions and professionals: commitment to serve the profession’s clients. That is, professionals are expected to make a fiduciary commitment to place their clients’ interests ahead of their own. In exchange for faithfully applying their unique knowledge and skills on behalf of their clients, members of a profession are granted the freedom to practice and to regulate themselves.

Professionals, as such, are held to different standards of conduct from other persons. Relationships and interactions that may be ethically unproblematic among nonprofessionals may be unacceptable when one of the parties is a professional. An individual may have a personal interest that is perfectly acceptable in itself, but it conflicts with an obligation the same individual has as a health care professional. The nature of professions is such that “the human needs the professions address and the human relationships peculiar to them ... are sufficiently distinct to warrant, indeed to demand, expectations of a higher morality and a greater commitment to the good of others than in most other human activities.” The clinical relationship is one of both great intimacy and great disparity in power and knowledge, giving rise to special obligations for health care professionals.

A boundary violation occurs when a therapist’s behavior goes beyond appropriate professional limits. Boundary violations generally arise when the interaction between parties blurs their roles vis-à-vis one another, or creates a “double bind” situation in which a personal interest displaces the professional’s primary commitment to the patient’s welfare in ways that harm—or appear to harm—the patient or the patient-clinician relationship, or might reasonably be expected to do so.

A variety of standards establish the limits of appropriate professional behavior, whether those limits are explicitly enumerated in standards of conduct, codes of ethics, or law, or tacitly conveyed through professional training and widespread acceptance. Individuals who seek help must rely on the professional they consult to be trustworthy—when clinicians behave in ways that call their professional judgment and objectivity into question, the trust on which the relationship depends is compromised. And when trust is compromised, the efficacy of the therapeutic relationship is adversely affected.

It is important to note that personal and professional interests are not inherently in conflict with one another; in fact, they often coincide. A clinician’s personal desire to be compassionate is compatible with his or her professional obligations. It is natural to want to earn money through one’s professional activity. That desire becomes problematic only when the personal interest in earning a livelihood interferes with one’s commitments and obligations as a health care professional. Standards regarding professional boundaries can be found in a variety of sources. Directly or indirectly, professional codes of ethics, consensus statements, position papers, policies, and laws define the boundaries of appropriate behavior for professionals.

Thus, for example, the National Association of Social Workers’ Code of Ethics requires that social workers “not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client” and broadly defines “dual or multiple relationships,” but does not suggest criteria by which professionals should assess the nature or level of risk a particular dual relationship would pose for a client. The message implicitly shared by all such documents, however, is that being a professional entails forgoing some interactions or relationships in which one might otherwise wish to engage in order to protect the interests and well-being of clients/patients.

Many kinds of interaction potentially interfere with the primary clinical relationship between practitioner and patient and pose concerns about acceptable conduct for clinicians. Becoming socially involved or entering into a business relationship with a patient, for example, can impair, or appear to impair, the professional’s objectivity. Accepting a gift is sometimes an appropriate way to allow a patient to express his or her gratitude, and at other times is problematic. Showing favoritism—by giving a particular patient extra attention, time, or priority in scheduling appointments, for example—can cross the boundary between action that is appropriate advocacy on behalf of a particular patient and action that is unfair to others. Such interactions or activities are ethically problematic when they can reasonably be expected to affect the care received by the individual or by other patients or the practitioner’s relationships with his or her colleagues, or when they give the appearance of doing so. Yet not all behavior that might be considered inappropriate necessarily violates professional obligations. Health care professionals should be alert to situations in which they may be likely to be motivated to behave in ways that violate accepted ethical standards. Ambiguous interactions and relationships, for example, have the potential both to impair the professional’s objectivity and compromise his or her judgment, and to give rise to conflicting expectations on the patient’s part, which can contaminate the therapeutic relationship and potentially undermine the patient’s trust. Professional Law and Ethics, LPCC, 18 credits, BBS approved, licensure, prelicensure, instant certificates.

Finally, seeming to “play favorites” by accommodating individual patients in special ways can also raise concerns about ethical professional boundaries. Health care professionals commit themselves to treating all patients fairly. Patients often need more than just clinical care, and it is not necessarily inappropriate for professionals to provide help in other ways. But their actions on behalf of a particular patient must not adversely affect the clinical relationship with that patient or compromise the care available to other patients, or appear to others to do so. Just what activities might constitute a violation of professional boundaries depends very much on the specific context in which such actions take place and their foreseeable likely consequences for others.

Recommendations Health care professionals should beware of interacting with any patient in ways that could reasonably be expected to create awkward situations for either party, compromise the professional’s primary commitment to patient welfare, or call the professional’s objectivity into question. While not every business or social interaction or relationship between a health care professional and a patient necessarily violates ethical professional boundaries, professionals should critically examine their own actions by considering the following:  Is this activity a normal, expected part of practice for members of my profession?  Might engaging in this activity compromise my relationship with this patient? With other patients? With my colleagues? With my institution? With the public?  Could this activity cause others to question my professional objectivity?  Would I want my other patients, other professionals, or the public to know that I engage in such activities? If the answers to these questions indicate that an activity may violate professional ethical boundaries, the clinician should:  Determine if there are applicable standards.  Consult a trusted and objective peer for a second opinion about the activity.  Seek assistance from a supervisor or ethics committee.  Communicate his or her concern to the individual involved.  Transfer the patient to another clinician’s care if the professional relationship has been compromised, or if avoiding the violation will damage the relationship. As well, it is imperative that health care professionals be familiar with:  Relevant professional codes of ethics, standards of practice, guidelines, and position statements; Applicable policies in their facilities; and Laws pertaining to relationships between patients and health care professionals. Professional Ethics and Law

Online Therapy

Individuals who provide psychotherapy over the Internet are required by law to be licensed. If the psychotherapy is provided online to persons the psychotherapist is required to be licensed.

The licensed psychotherapist must obtain verbal and written informed consent from the consumer or the consumer’s representative. Informed consent should include the following:

  1. Fee for Service – including acceptable forms of payment, whom the fee should be paid to and how the fee should be paid.
  2.  Confidentiality and the limits to confidentiality. Include a complete description of the methods used to insure online security of confidential information.
  3. Inform the consumer of the risks and benefits of participating in online psychotherapy.
  4. Describe all existing laws regarding patient access to medical information.
  5. The patient or the patient's legal representative retains the option to withhold or withdraw consent at any time.
  6. The signed written consent form shall remain as part of the consumer’s record.
  7. Failure to comply with informed consent should be considered unprofessional conduct.

Definitions of Online Communications

Telemedicine means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes telemedicine.

Interactive means an audio, video, or data communication involving a real time (synchronous) or near real time (asynchronous) two-way transfer of medical data and information.

Surrogate decisionmaking means any decision made in the practice of medicine by a parent or legal representative for a minor or an incapacitated or incompetent individual.

Benefits and Limitations: Counselors inform clients of the benefits and limitations of using information technology applications in the counseling process and in business/ billing procedures. Such technologies include but are not limited to computer hardware and software, telephones, the World Wide Web, the Internet, online assessment instruments and other communication devices.

When providing technology-assisted distance counseling services, counselors determine that clients are intellectually, emotionally, and physically capable of using the application and that the application is appropriate for the needs of clients.

When technology-assisted distance counseling services are deemed inappropriate by the counselor or client, counselors consider delivering services face to face.

Counselors provide reasonable access to computer applications when providing technology-assisted distance counseling services.

Counselors ensure that the use of technology does not violate the laws of any local, state, national, or international entity and observe all relevant statutes.

Counselors seek business, legal, and technical assistance when using technology applications, particularly when the use of such applications crosses state or national boundaries.

Online Therapy and Informed Consent

As part of the process of establishing informed consent, counselors do the following:

1. Address issues related to the difficulty of maintaining the confidentiality of electronically transmitted communications.

2. Inform clients of all colleagues, supervisors, and employees, such as Informational Technology (IT) administrators, who might have authorized or unauthorized access to electronic transmissions.

3. Urge clients to be aware of all authorized or unauthorized users including family members and fellowemployees who have access to any technology clients may use in the counseling process.

4. Inform clients of pertinent legal rights and limitations governing the practice of a profession over state lines or international boundaries.

5. Use encrypted Web sites and e-mail communications to help ensure confidentiality when possible.

6. When the use of encryption is not possible, counselors notify clients of this fact and limit electronic transmissions to general communications that are not client specific.

7. Inform clients if and for how long archival storage of transaction records are maintained.

8. Discuss the possibility of technology failure and alternate methods of service delivery.

9. Inform clients of emergency procedures, such as calling 911 or a local crisis hotline, when the counselor is not available.

10. Discuss time zone differences, local customs, and cultural or language differences that might impact service delivery.

11.Inform clients when technologyassisted distance counseling services are not covered by insurance.

Sites on the Internet

Counselors maintaining sites on the World Wide Web (the Internet) do the following:

1. Regularly check that electronic links are working and professionally appropriate.

2. Establish ways clients can contact the counselor in case of technology failure.

3. Provide electronic links to relevant state licensure and professional certification boards to protect consumer rights and facilitate addressing ethical concerns.

4. Establish a method for verifying client identity.

5. Obtain the written consent of the legal guardian or other authorized legal representative prior to rendering services in the event the client is a minor child, an adult who is legally incompetent, or an adult incapable of giving informed consent.

6. Strive to provide a site that is accessible to persons with disabilities.

7. Strive to provide translation capabilities for clients who have a different primary language while also addressing the imperfect nature of such translations.

8. Assist clients in determining the validity and reliability of information found on the World Wide Web and other technology applications.

Internet counseling, is defined by NBCC as "the practice of professional counseling and information delivery that occurs when client(s) and counselor(s) are in separate or remote locations and utilize electronic means to communicate over the Internet." This definition would seem to include Web pages, email, and chat rooms but not telephones and faxes. The NBCC makes a statement that it does not advocate for or against Internet Counseling (NBCC, 1998). Some therapists who say that internet counseling is not counseling have Web sites available to people. Most of the Web sites have some kind of disclaimer stating that the information found there is only advice, e-therapy, information and education, or a supplement to therapy.

One of the counseling profession's main concerns will be of those who are unlicensed persons promoting themselves as competent Internet counselors. When a counselor is unlicensed, a state has no regulatory authority, unless there is a law in that state that will allow prosecution as a criminal act for practicing counseling without a license, or gives the board regulatory authority. Unlicensed cybercounselors are almost legally untouchable, especially when a disclaimer statement is displayed stating what they are doing is not therapy.

State Regulations and Online

Similar to telemedicine, the issues of licensure and jurisdiction arise, except that counseling boards have not begun to address the problem. A client who obtains counseling services via the Internet from a counselor licensed in the same state has recourse to that state's regulatory board for any violations against either the state code or standards of practice. However, if a client has a complaint about a counselor licensed in another state, it is unclear in which state to register the complaint. As indicated earlier, state medical boards have addressed this issue, but not in a uniform manner.

The Federation of State Medical Boards (FSMB) produced model legislation regarding telemedicine. This proposal is less than helpful as a guide, as the main responsibility for who can or cannot practice telemedicine in the state is left to each state (Orbuch, 1997). The Health On the Net Foundation has a Code of Conduct for medical and health web sites which might be a guide to those counselors who have Web pages, but counseling is not specifically mentioned in any of their eight principles (Health On the Net Foundation Code of Conduct for medical and health web sites). The International Society for Mental Health Online was formed in 1997 "to promote the understanding, use and development of online communication, information and technology for the international mental health community." The principles are broad and not of the nature of regulation. The American Telemedical Association has a policy that is a compromise between having a national medical license and restrictive state regulation. It proposes that the state should not restrict "virtual travel" of its patients to seek medical advice outside of the state. It also states that a non-face-to-face encounter by a patient with a physician in another state is regulated by the physician's home state.

Internet Counseling in one form or another is upon us (Lee, 1998). To dismiss it is unrealistic. We cannot ignore it, for to do so is to allow it to progress unregulated and open to charlatans, with the result of diminishing the profession of counseling. To change the quagmire into a quest will require risk-takers who are willing to be forward thinkers, embracing technology as having the possibility of a positive effect on the profession, and bringing wellbeing to a greater number of people.

Insurance Reimbursement

Reports to Third Parties

Patients are generally unaware of the information provided to their insurance carrier. As a provider, you may want to inform your patients about the information you plan to release to their insurance company as well as changes in what you release if required to so for authorization of sessions from the insurance company. It is not necessary to give your patients this information, but they may appreciate your candor.

 

If you bill insurance, you automatically must be HIPAA-compliant. If you choose not to bill insurance and instead collect directly from each patient, there are still some circumstances that require you to become compliant. Generally, it is simply a matter of following good office procedures that are designed to protect your patient's Private Medical Information (PMI). When a patient signs the standard HCVA 1500 form for billing, it gives permission to the provider to give Private Medical Information to an insurance carrier including their name, date of birth, insurance identification number or Social Security Number, and their DSM IV-R diagnosis. The information on this form should be treated with the highest security since release of it is illegal under HIPAA to anyone but the insurance company and the staff of the clinician's office. Staff should be educated about the importance of keeping this information secure since it is ultimately the clinician's responsibility if it is accidentally released. This information must not sent via the Internet since the Internet is not considered secure. Also, downloading information on a Notebook or other computer that may leave the office is considered unsafe since Notebooks are often stolen and the information on them, regardless of the level of security, has a possibility of being used by unauthorized people.

 

Billing that uses PMI must be sent by FAX or the US Postal Service. Some insurance companies have Internet billing that provides a secure link but it is incumbent on the clinician to determine that the material provided cannot be shared with persons or companies who are not authorized by the patient to receive the information.

 

Insurance companies may ask for further information about the patient including treatment plans, case notes, and other information. They can do this legally without further consent from the patient. Although many clinicians consider it less problematic to send the information to the insurance company without informing the patient about the release of additional information, other clinicians find it more ethical to inform the patient about the information that is requested. Some patients consider their privacy to be more important than the payment the insurance company may provide and would prefer that clinicians keep more of their information private. The population with whom the clinician works may help determine whether the patient would prefer to be informed about the information that may be sent for authorization of benefits.

 

Insurance companies must be billed only for sessions in which the patient was seen and only for the amount of time the patient was seen. While some insurance companies pay for telephone or Internet sessions, the clinician should check with the insurance company prior to billing for these services and should not bill for them under an "office" visit without prior approval. Billing for sessions in which the patient is not seen is considered fraud and is prosecuted as a felony. If you find an error in your billing or in the EOB from the insurance company for additional sessions, notify the insurance company immediately and return the payment to them, otherwise you are breaking the law. If your patient does not come to their session, you cannot bill the insurance company. It is best to include this information in the initial contract with your patients so they are aware that they will be responsible for the entire fee when they miss sessions, regardless of cause, unless the clinician decides they will not charge for that session. It is NEVER acceptable to charge the insurance company for missed sessions.

 

Patients who use insurance, must always pay their co-payment, rather than accepting insurance as "payment in full." Part of the contract the clinician has with the patient and the insurance company is to collect the co-payment, thereby making the patient at least partially responsible for payment of fees. It is incumbent on the clinician, unless otherwise agreed prior to service, to determine the fee the patient is to pay each session. Because of the complexity of using the insurance as a third-party-payer, it is sometimes necessary to bill the insurance and receive payment prior to determining how much the patient's co-pay is. Psychotherapists ethically are not to allow their patients to acquire bills they are unable to pay. If there are surprises in billing the insurance, make certain that they occur early in the treatment process to avoid the awkwardness of dunning patients for bills they did not expect or discovering you have made a large contribution to charity in unpaid psychotherapy hours. (No, you cannot deduct them).

 

In addition to general practices that apply to clinicians who bill insurance, there are also State Laws which are unique to each State. Inquire directly with your State to determine which laws apply to you and your practice.

 

Some States have laws that require insurance companies to reimburse clinicians who are treating psychological conditions that are considered to have a medical basis in the same manner as other medical illnesses. Generally, these diagnoses include Major Depression, Manic-Depression, Generalized Anxiety, Eating Disorders, Schizophrenia, and other psychological illnesses that have been shown to either have a hereditary basis or be treated by medication. Insurance companies will supply a list of such illnesses. Psychological problems caused by environmental, social, or relational in nature are generally not covered under the "biologically based" clause. If an illness  is found to be "biologically-based" the limits on number of sessions for psychotherapy are suspended and the patient can be seen as often and for as long as is considered "medically necessary" by the therapist and the insurance company. Unfortunately, even if you are treating a severe schizophrenic who happened to purchase insurance in a State that does not recognize "biologically based" you may find yourself trying to treat your patient in the five sessions approved for psychotherapy by their insurance company.

 

Additionally, the insurance company can ask for treatment plans, progress notes, and other paperwork to ascertain that the treatment benefits the patient and falls within their guidelines for treatment of this type of disorder. The laws pertaining to this are Byzantine at best. Insurance companies are to have written rules about the type and amount of treatment allowed as well as provisions for determining whether the treatment is useful for the patient's improvement or recovery. Needless to say, these rules are vague and, in practice, rarely exist, but many States require that the insurance companies maintain these documents. In practice, be kind to yourself and your patient: call their insurance company to check on coverage and bill for the first session immediately so both you and your patient have a clearer idea about what their insurance will cover. As an added complication, some companies are retaining their insurance carrier but using another carrier, generally with less coverage, for psychotherapy so do not assume that an insurance carrier which is known to you automatically carries the same benefits for psychotherapy for one patient as it does with another. It is always worthwhile to check with the insurance carrier, bill in a timely manner, and keep good records about payment.

Ethical Principle: Counselors are accurate, honest, and objective in reporting their professional activities and judgments to appropriate third parties, including courts, health insurance companies, those who are the recipients of evaluation reports, and others. Counselors observe all applicable HIPAA regulations. For more information on third party reporting and reimbursements read the HIPAA section of this course.

Termination of Therapy

 Abandonment Prohibited

Counselors do not abandon clients. Counselors make appropriate arrangements for the continuation of treatment, when necessary, during interruptions such as vacations, illness, and following termination.

Inability to Assist Clients

If counselors determine an inability to be of professional assistance to clients, they avoid entering or continuing counseling relationships. Counselors are knowledgeable about culturally and clinically appropriate referral resources and suggest these alternatives. If clients decline the suggested referrals, counselors should discontinue the relationship.

Appropriate Termination

Counselors terminate a counseling relationship when it becomes reasonably apparent that the client no longer needs assistance, is not likely to benefit, or is being harmed by continued counseling. Counselors may terminate counseling when in jeopardy of harm by the client, or another person with whom the client has a relationship, or when clients do not pay fees as agreed upon. Counselors provide pre-termination counseling and recommend other service providers when necessary.

Appropriate Transfer of Services

When counselors transfer or refer clients to other practitioners, they ensure that appropriate clinical and administrative processes are completed and open communication is maintained with both clients and practitioners.

Relevant Family Law

Child Custody Disputes

 

The court may require parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional, or through other community programs and services that provide appropriate counseling, including, but not limited to, mental health or substance abuse services, for not more than one year, provided that the program selected has counseling available for the designated period of time, if the court finds both of the following:

 

   (1) The dispute between the parents seeking custody or visitation rights with the child,  poses a substantial danger to the best interest of the child.

   (2) The counseling is in the best interest of the child.

   (b) In determining whether a dispute,  poses a substantial danger to the best interest of the child, the court shall consider, in addition to any other factors the court determines relevant, any history of domestic violence, within the past five years between the parents.

   (c) If the court finds that the financial burden created by the order for counseling does not otherwise jeopardize a party's other financial obligations, the court shall fix the cost and shall order the entire cost of the services to be borne by the parties in the proportions the court deems reasonable.

   (d) The court, in its finding, shall set forth reasons why it has found both of the following:

   (1) The dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child.

   (2) The financial burden created by the court order for counseling does not otherwise jeopardize a party's other financial obligations.

 

   (e) The court shall not order the parties to return to court upon the completion of counseling.  Any party may file a new order to show cause or motion after counseling has been completed, and the court may again order counseling.

 

The counseling shall be specifically designed to facilitate communication between the parties regarding their minor child's best interest, to reduce conflict regarding custody or visitation, and to improve the quality of parenting skills of each parent.

 

In a proceeding in which counseling is ordered, where there has been a history of abuse by either parent against the child or by one parent against the other parent and a protective order is in effect, the court may order the parties to participate in counseling separately and at separate times.  Each party shall bear the cost of his or her own counseling separately, unless good cause is shown for a different apportionment. 

 

Domestic Partners

 

Domestic partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring.

   (b) A domestic partnership shall be established when both persons file a Declaration of Domestic Partnership with the Secretary of State and, at the time of filing, all of the following requirements are met:

   (1) Both persons have a common residence.

   (2) Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.

   (3) The two persons are not related by blood in a way that would prevent them from being married to each other in this state.

   (4) Both persons are at least 18 years of age.

   (5) Either of the following:

   (A) Both persons are members of the same sex.

   (B) One or both of the persons meet the eligibility criteria  of the Social Security Act

(a) for old-age insurance benefits or  for aged individuals.  Persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62.

   (6) Both persons are capable of consenting to the domestic

partnership.

   (c) "Have a common residence" means that both domestic partners share the same residence.  It is not necessary that the legal right to possess the common residence be in both of their names.  Two people have a common residence even if one or both have additional residences.  Domestic partners do not cease to have a common residence if one leaves the common residence but intends to return. 

 

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

 

   (b) Former registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon former spouses.

 

   (c) A surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower.

 

   (d)The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses.

 

   (e)Registered domestic partners shall be treated by law as if federal law recognized a domestic partnership in the same manner as law.

 

   (f) Registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.

 

   (g) No public agency in this state may discriminate against any person or couple on the ground that the person is a registered domestic partner rather than a spouse or that the couple are registered domestic partners rather than spouses.

 

Domestic Violence and Restraining Orders

 

An order may be issued, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.

 

An order under this part may be granted to any person, including a minor.

   (b) The right to petition for relief shall not be denied because the petitioner has vacated the household to avoid abuse, and in the case of a marital relationship, notwithstanding that a petition for dissolution of marriage, for nullity of marriage, or for legal separation of the parties has not been filed.

 

 "Notice to Restrained Person:  If you do not appear at the court hearing specified herein, the court may grant the requested orders for a period of up to 3 years without further notice to you."

 

It is the function of a support person to provide moral and emotional support for a person who alleges he or she is a victim of domestic violence.  The person who alleges that he or she is a victim of domestic violence may select any individual to act as a support person.  No certification, training, or other special qualification is required for an individual to act as a support person.  The support person shall assist the person in feeling more confident that he or she will not be injured or threatened by the other party during the proceedings where the person and the other party must be present in close proximity.  The support person is not present as a legal adviser and shall not give legal advice.

   (b) A support person shall be permitted to accompany either party to any proceeding to obtain a protective order. Where the party is not represented by an attorney, the support person may sit with the party at the table that is generally reserved for the party and the party's attorney.

   (c) If a court has issued a protective order, a support person shall be permitted to accompany a party protected by the order during any mediation orientation or mediation session, including separate mediation sessions. The agency charged with providing family court services shall advise the party protected by the order of the right to have a support person during mediation.  A mediator may exclude a support person from a mediation session if the support person participates in the mediation session, or acts as an advocate, or the presence of a particular support person is disruptive or disrupts the process of mediation.  The presence of the support person does not waive the confidentiality of the mediation, and the support person is bound by the confidentiality of the mediation.

   (d) A support person shall be permitted to accompany a party in court where there are allegations or threats of domestic violence and, where the party is not represented by an attorney, may sit with the party at the table that is generally reserved for the party and the party's attorney.

   (e) Nothing precludes a court from exercising its discretion to remove a person from the courtroom when it would be in the interest of justice to do so, or when the court believes the person is prompting, swaying, or influencing the party protected by the order.

 

When making a protective order, as  where both parties are present in court, the court shall inform both the petitioner and the respondent of the terms of the order, including notice that the respondent is prohibited from owning, possessing, purchasing or receiving or attempting to own, possess, purchase or receive a firearm, and including notice of the penalty for violation.

 

The court may not issue a mutual order enjoining the parties from specific acts of abuse (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

 

Prior to a hearing on the issuance or denial of an order, the court shall ensure that a search is or has been conducted to determine if the subject of the proposed order has any prior criminal conviction for a violent felony  or a serious felon; has any misdemeanor conviction involving domestic violence, weapons, or other violence; has any outstanding warrant; is currently on parole or probation; or has any prior restraining order or any violation of a prior restraining order.  The search shall be conducted of all records and data bases readily available and reasonably accessible to the court, including, but not limited to, the following:

   (1) The Violent Crime Information Network (VCIN).

   (2) The Supervised Release File.

   (3) State summary criminal history information maintained by the Department of.

   (4) The Federal Bureau of Investigation's nationwide data base.

   (5) Locally maintained criminal history records or data bases.

   However, a record or data base need not be searched if the information available in that record or data base can be obtained as a result of a search conducted in another record or data base.

   (b) (1) Prior to deciding whether to issue an order under this part or when determining appropriate temporary custody and visitation orders, the court shall consider the following information obtained pursuant to a search conducted under subdivision (a):  any conviction for a violent or a serious  misdemeanor conviction involving domestic violence, weapons, or other violence; any outstanding warrant; parole or probation status; any prior restraining order; and any violation of a prior restraining order.

   (2) Information obtained as a result of the search that does not involve a conviction shall not be considered by the court in making a determination regarding the issuance of an.  That information shall be destroyed and shall not become part of the public file in this or any other civil proceeding.

Therapist Disclosures to Patients

Informed Consent

AAMFT Code of Ethics (2001):

Marriage and family therapists obtain appropriate informed consent to therapy or related procedures as early as feasible in the therapeutic relationship, and use language that is reasonably understandable to clients. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third-party observation.

ACA Code of Ethics Regarding Informed Consent

Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor. Counselors have an obligation to review in writing and verbally with clients the rights and responsibilities of both the counselor and the client. Informed consent is an ongoing part of the counseling process, and counselors appropriately document discussions of informed consent throughout the counseling relationship.

Types of Information Needed

Counselors explicitly explain to clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, and relevant experience; continuation of services upon the incapacitation or death of a counselor; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements.

Clients have the right to confidentiality and to be provided with an explanation of its limitations (including how supervisors and/or treatment team professionals are involved); to obtain clear information about their records; to participate in the ongoing counseling plans; and to refuse any services or modality change and to be advised of the consequences of such refusal.

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.

Recordkeeping

Record Keeping Requirements 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.

It is your responsibility to maintain the confidentiality of the records. Patient records should be kept in locked containers except when in use. They should be shredded when they are discarded to avoid the potential of having the notes fall into the hands of others. Office staff and others who handle the files should be made aware of the importance of confidentiality. Handle these records as if they were notes made by your own therapist about you. Your patient feels the same need to have the notes be private. Office staff, filing clerks, billing agencies, and others do not have the same burden of confidentiality as does the clinician. However, it is the responsibility of the therapist to inform the staff about the importance of confidentiality and to take reasonable action to be certain that staff does not violate the patient's confidentiality. While this is a solid part of HIPAA, it seems to be regularly violated by clerks and other office staff. Often my patients who work for or with counselors in the community or in government report cases which are confidential which they have read with avid interest. Try to keep this sort of clerk off your staff.

Standards For Client Records

The documentation standards are described below under key topics related to client care. All standards should be addressed in the client record; however, there is no requirement that the record have a specific document or section addressing these topics.

A. Assessments

1. The following areas should be included as appropriate as a part of a comprehensive client record.

• Relevant physical health conditions reported by the client should be prominently identified and updated as appropriate.

• Presenting problems and relevant conditions affecting the client’s physical health and mental health status should be documented, for example: living situation, daily activities, and social support.

• Documentation should describe client strengths in achieving client plan goals.

• Special status situations that present a risk to client or others should be prominently documented and updated as appropriate.

• Documentation should include medications that have been prescribed by mental health plan physicians, dosages of each medication, dates of initial prescriptions and refills, and documentation of informed consent for medications.

• Client self report of allergies and adverse reactions to medications, or lack of known allergies/sensitivities should be clearly documented.

• A mental health history should be documented, including: previous treatment dates, providers, therapeutic interventions and responses, sources of clinical data, relevant family information and relevant results of relevant lab tests and consultation reports.

• For children and adolescents, pre-natal and perinatal events and complete developmental history should be documented.

• Documentation should include past and present use of tobacco, alcohol, and caffeine, as well as illicit, prescribed and over-the counter drugs.

• A relevant mental status examination should be documented.

• A five axis diagnosis from the most current DSM should be documented, consistent with the presenting problems, history, mental status evaluation and /or other assessment data.

B. Client Plans

1. Client Plans should:

• have specific observable and/or specific quantifiable goals

• identify the proposed type(s) of intervention

• have a proposed duration of intervention(s)

• be signed (or electronic equivalent) by :

• the person providing the service(s), or

• a person representing a team or program providing services

• when the client plan is used to establish that services are provided under the direction of an approved category of staff

• a physician

• a licensed/”waivered” psychologist

• a licensed/registered/waivered social worker

• a licensed/registered/waivered Marriage, Family and Child Counselor or

• In addition:

• client plans should be consistent with the diagnoses, and the focus of intervention should be consistent with the client plan goals, and there should be documentation of the client’s participation in and agreement with the plan. Examples of documentation include, but are not limited to, reference to the client’s participation and agreement in the body of the plan, client signature on the plan, or a description of the client’s participation and agreement in progress notes.

• client signature on the plan can be used as the means by which it documents the participation of the client

• when the client is a long term client, and

• the client is receiving more than one type of service

• when the client’s signature is required on the client plan and the client refuses or is unavailable for signature, the client plan should include a written explanation of the refusal or unavailability.

• the clinician should give a copy of the client plan to the client on request.

2. Timeliness/Frequency of Client Plan:

• Should be updated at least annually.

• The clinician should establish standards for timeliness and frequency for the individual elements of the client plan described in item 1.

C. Progress Notes

1. Items that must be contained in the client record related to the client’s progress in treatment include:

• The client record should provide timely documentation of relevant aspects of client care

• Clinicians should use client records to document client encounters, including relevant clinical decisions and interventions

• All entries in the client record should include the signature of the person providing the service (or electronic equivalent); the person’s professional degree and licensure

• All entries should include the date services were provided

• The record should be legible

• The client record should document referrals to community resources and other agencies, when appropriate

• The client record should document follow-up care, or as appropriate, a discharge summary

Patient Access to Records

The holder of the privilege also has the right to read all information in his or her file with the exception of your personal notes which belong solely to you. Some therapists find this requires them to keep separate files so their personal notes do not become part of the patient's legal record. Your patient can read all notes which have their identifying information, diagnosis, treatment plan, prognosis, and other information including billing and information from other sources which you have included in the file such as notes from other physicians and hospitals. Any spare notes in the patient's file also have information which must be passed to the patient. All information in HIPAA notes are the patient's property and must be released. The file is the property of the clinician so copies must be made if the patient requests a copy of their file.