"I Hate It When That Happens..." - Law & Ethics For California MFTs by Pamela H. Harmell, Ph.D. 6 Credit hours - $89 Last revised: 02/02/2005 Course content © copyright 2005 by Pamela H. Harmell, Ph.D.. All rights reserved. ContinuingEdCourses.Net DBA SocialWorkCoursesOnline.com is approved by the Association of Social Work Boards (ASWB) to offer continuing education for social workers, through the Approved Continuing Education (ACE) program. ContinuingEdCourses.Net DBA SocialWorkCoursesOnline.com maintains responsibility for its courses. ASWB provider #1107. ContinuingEdCourses.Net DBA SocialWorkCoursesOnline.com is approved by the National Board for Certified Counselors (NBCC) as an NBCC-Approved Continuing Education Provider (ACEP) and may offer NBCC-approved clock hours for events that meet NBCC requirements. ContinuingEdCourses.Net DBA SocialWorkCoursesOnline.com solely is responsible for all aspects of the program. NBCC provider #6323. ContinuingEdCourses.Net DBA SocialWorkCoursesOnline.com is approved by the California Board of Behavioral Sciences (CA-BBS) to offer continuing education for MFCCs (MFTs) and LCSWs. CA-BBS provider #3311. ContinuingEdCourses.Net DBA SocialWorkCoursesOnline.com is approved by the Ohio Counselor, Social Worker, & Marriage and Family Therapist Board (OH-CSWMFT) to offer continuing education for counselors, social workers, and MFTs. OH-CSWMFT provider #RST080501 & #RCX010801. Take the Course Take the Test Buy your Certificate

LEARNING OBJECTIVES

This is a beginning to intermediate level course. After completing this course, California Marriage and Family Therapists will be able to:

• Apply knowledge of the current CAMFT Ethics Code to patient care and ethical situations
• Utilize knowledge of legal and ethical standards to minimize the risk of malpractice civil suits
• Identify and properly handle counter-transference & burnout issues
• Discuss patient welfare and protection of patients' rights
• Explain the California mandatory reporting laws
• Assess for suicide risk using the SAD PERSONS assessment tool
• Provide a safer environment for clients and caregivers through an understanding of current issues in dealing with dangerous patients
• Apply current issues of confidentiality, privilege, HIPAA, record-keeping, and the avoidance of fraudulent billing practices to one's professional practice
• Discuss family law, treatment of minors, and current issues in Child Abuse Laws and Elder Abuse Laws

AUTHOR DISCLAIMER

Thank you for deciding to take this course!

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

The authors cited are accepted and published experts in the field of legal and ethical issues in psychology. Cited herein are current opinions, case law when applicable, California statute, and interpretations of the California Association of Marriage and Family Therapists (CAMFT) Ethical Standards for Marriage and Family Therapists (2002).

This course is IN NO WAY a legal document nor does it offer or replace legal advice. It provides no legal interpretations other than those of other experts as cited. When the author is giving expert opinion, she cites her own articles as references within the text. This material is not meant as a personal or clinical consultation, nor is it meant to be substituted for contact with an ethics committee, attorney, expert, or professional consultant.

Since this applies to each section of the course, it will only be stated once in this beginning Section A.

Good Luck and I hope you enjoy the journey!

LEARNING OBJECTIVES FOR SECTION A

• To understand the basic elements of malpractice
• To become familiar with the 2002 CAMFT Ethical Standards for Marriage and Family Therapists

INTRODUCTION TO COURSE

The California Board of Behavior Sciences (BBS) is the licensing board for Marriage and Family Therapists. The BBS is located at 400 R Street, Suite 3150 in Sacramento and is one of the boards overseen by the California Department of Consumer Affairs. The website is www.bbs.ca.gov and the phone number is (916) 445-4933. The mission of all licensing boards is protection of the consumers of the state and to establish and maintain standards for competent and ethical behavior of the professionals who are under the jurisdiction of that licensing board. The California BBS is responsible for the licensing of Marriage and Family Therapists and Licensed Clinical Social Workers.

In this course, you will be asked from time to time to take brief quizzes which are aimed at helping you learn and retain the material for the final evaluation of your learning retention at the conclusion of the course.

New material will be introduced with BOLD, ALL CAPS HEADINGS. You will find subheadings that are Bold but not all caps.

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

How to Display or Print the Ethical Standards

To take this course you will need access to the CAMFT Ethical Standards. The easiest way is to click here to view the Standards in a separate window while taking this course. You may print the Standards or simply refer to the Standards window when appropriate while reading the course material. Links to the Standards are provided at appropriate times during the course, which will also bring up a separate window.

Brief History of the Board of Behavioral Sciences

California has a long history of licensing Master’s Degree psychotherapists; in fact, California was the first state to register social workers when, in 1945, the “Board of Social Work Examiners” was formed. In 1963, this board was given the responsibility for administering the Marriage, Family, and Child Counselor Act. The act was renamed the Social Worker and Marriage Counselors Qualifications Board. In 1967 the Licensed Clinical Social Worker Program was established. In 1970, a licensing program for Educational Psychologists was added and the Board then became known as the Board of Behavior Science Examiners. Finally, on January 1, 1997, the name was changed to the current name: The Board of Behavioral Sciences, clearly displaying the board does more than administer examinations for licensure.

Licensing boards are now requiring a course in Professional Ethics for every two year renewal of license. Since this is not a one-time requirement in most states, this course will be a fundamental or basics course followed each renewal period with a brief review and updates and expansions to current standard of care and ethics. Currently in California, the BBS requires MFTs to take six hours of law and ethics continuing education every two year renewal.

What is a Marriage and Family Therapist?

Business and Professions Code 4980.02, Practice of Marriage, Family and Child Counseling, states:

For the purposes of this chapter, the practice of marriage, family, and child counseling shall mean that service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more satisfying, and productive marriage and family adjustments. This practice includes relationship and pre-marriage counseling.

What is the Scope of Practice of a Marriage and Family Therapist?

CAMFT notes that many questions arise regarding the scope of practice of an MFT and what professional practices are within the purview of the license under the licensing law. The Scope of Competence is established by education, training and experience, while the Scope of Practice is determined by the laws that regulate one’s license and establishes the duties of the professional holding the license. Certainly one expands the scope of competence gradually, taking workshops, getting professional consultation, taking on new clients with varying diagnoses and issues as new skills are developed. However, scope of practice is a different matter. Scope of practice is a legal and ethical matter with regard to what the licensed MFT is trained, educated and prepared to do within the profession and what makes the MFT different from a psychologist or a social worker. In other words, what are the duties under the law, and what are the limitations.

Working outside one’s competence AND one’s scope of practice are both violations of law and the CAMFT Ethical Standards (to be discussed later). (For legal citations see Business and Professions Code 1845.)

Mary Riemersma, Executive Director of CAMFT, discusses the scope of practice of the MFT in working with individual clients, not just families and children. Considering the primary goal of the MFT is to improve interpersonal relationships within the family, Ms. Riemersma addresses this issue:

What about the treatment of individuals who are not married or are not involved in relationships? It may be arguable that treating such a person would be outside of the MFT scope of practice. However, virtually every person, with the exception of a hermit, is involved in relationships of some kind . Of course, even work with a hermit could arguably be within one’s scope of practice as the work could likely focus upon the need for, and lack of, healthy relationships with others. (Riemersma, http://www.camft.org/)

Ms. Riemersma asks the question, “How can a MFT determine if he or she is within his or her scope of practice? To answer this question when uncertain, ask the following questions”:

1. Does the need for treatment stem from issues involving the patient’s relationships, including, but not limited to: marital, other conjoint, family, work, pre-marital, household, extended family, sibling, or other relationships.

2. Does the need for treatment impact upon the patient’s relationships with others, including, but not limited to: marital, other conjoint, family, work, premarital, household, extended family, sibling, or other relationships.

3. How would your peers (other than MFTs) evaluate whether or not you were working within your scope of practice?

4. What would your professional association say, if given all of the facts, about whether or not you were working within your scope of practice?

5. What do you believe would be the position of the Ethics Committee for your professional association?

6. What would the licensing board say, if given all of the facts about whether or not you were working within your scope of practice?

Ms, Riemersma suggests that if you answer YES to either question one or two, and have good, defensible answers to questions three through six, you are most likely working within the MFT scope of practice for that particular client. It is your lawful ability to provide such treatment and it would be readily and reasonably defensible. For a further discussion please see CAMFT: What is an MFT? at http://www.camft.org/.

BRIEF INTRODUCTION TO LAW

Question 1 – Just for fun!

Our American system of law is separated into two divisions: Federal law and State law. In most cases, Federal law supersedes State law except in special situations. Can you think of one?

Federal law is superseded by State Law:

1. When someone who is not a U.S. citizen commits a felony
2. In some cases where murder is the issue
3. In HIPPA when state law gives more protection to patient’s records

If you guessed (c), you are correct! With HIPPA (to be discussed in another section) State Law supersedes Federal Law if the state law provides more protection to the patient’s records than do the provisions of the federal HIPPA laws. You may wish to record your answer for future review!

INTRODUCTION TO CAMFT ETHICAL STANDARDS

The complete title of the document is PART I: Ethical Standards for Marriage and Family Therapists and PART II: Procedures for Handling Complaints of Violations of the Code of Ethical Standards for Marriage and Family Therapists. The effective date of the current revision is May 1, 2002. Members of CAMFT are expected to not only abide by these Ethical Standards, but to be familiar with them and “applicable California laws and regulations governing the conduct of licensed marriage, and family therapists, interns and trainees” (CAMFT, 2002, p. 3).

The purposes of an ethics code for psychotherapists are many-facetted. They include: establishing the integrity of the profession, provision of a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and the ability to adjudicate. Adjudicate refers to acting as judge when another MFT violates the ethics code.

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

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

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

BASICS OF THE CAMFT ETHICS CODE

There are two primary sections:

Enforceable

The 92 numbered standards of Part I, are the only enforceable part of the Code, however, the Ethical Standards is NOT a legal document. Both Part I, Ethical Standards, and Part II, Handling Ethical Complaints, are only valid in California. However, many of the Ethical Standards are quite similar to the national code used by the American Association of Marriage and Family Therapists (AAMFT). To review the AAMFT Code of Ethics see www.aamft.org. The AAMFT Code of Ethics can be used in any state or ethics committee adjudication proceedings, and has been used in malpractice suits and licensing board violations. Normally, if there is a state set of codes, they will be used for any proceedings within that particular state, such as the CAMFT Ethical Standards in California.

Question 2

The CAMFT Ethical Standards is a legal document:

1. TRUE
2. FALSE

Question 3

Marriage and Family Therapists may only see families or couples.

1. TRUE
2. FALSE

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

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

Question three answer is (b) as explained above.

ELEMENTS OF MALPRACTICE

There are four elements of a malpractice suit and all four have to be believed to be met by an attorney in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, get reflected in out of court settlements.

A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether or not the psychotherapist has breached the standard of care (Black’s Law Dictionary, 1996). (We will define standard of care below.)

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

Standard of Care: This refers to the level of proficiency against which any other psychotherapist’s work will be measured or compared. In other words, what any other trained psychotherapist would do with reasonable experience or the minimum below which a psychotherapist must not fall (Stromberg, et al., 1988; Caudill & Pope, 1994).
Generally, the standard of care is defined by state statute (i.e., Penal Code 11166, child abuse report law) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law”. Case law is a ”collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute and must be followed just as closely as law that has progressed through the legislative process.

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

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

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

JENNY VIGNETTE

Jenny has seen Therapist Brown as a client for five months. She calls Therapist Brown saying she is suicidal and wants to “do herself in.” Therapist Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks and to “get social and meet a new lover” so that she can have a good time and “be normal.”

Later Jenny feels so bad she takes the entire bottle of her antidepressants in a suicide attempt along with a bottle of vodka. When she calls Therapist Brown the next day feeling suicidal and depressed, he tells her “look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now just relax.”

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

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

Question 4

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

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

Question 5

Therapist Brown was probably not adhering to the current Ethical Standards for Marriage and Family Therapists, the statutes of his state, nor the recent case law. Therefore he probably:

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

Question 6

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

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

Question 7

If Jenny would have been fine if her psychotherapist Brown had treated her in a more appropriate manner, this is proof of:

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

Questions 4-7 in order: Question (4) answer is (a) - duty of care gets established when a client-therapist relationship is developed or created. Question 5 - When Therapist Brown failed to follow the ethics code of his profession, he was (b) - breaching the standard of care of his profession. Question 6 answer is (c) - demonstrable harm. Since his patient wound up in the hospital, harm was able to be demonstrated. If it could be proven (very difficult to do) that the patient would not have suffered damages (or they would not have been as serious), had Therapist Brown done anything differently, then for question 7 the answer is (d) - proximate cause can be claimed by the attorney of the patient.

METHODS OF PREVENTING MALPRACTICE

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

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

CONSIDERING CLIENTS IN THE EARLY PHASE

There are numerous elements to be considered when a new client calls for an appointment for treatment. There are five main factors that must be considered no matter who is on the other end of the phone or who is seeking therapy with a marriage and family therapist. These “five always” are as follows: We could use the shortcut CCARQ.

C....Culture

What is the culture of the person seeking treatment with you? Lee and Richardson (1992) tell us that every therapy relationship is a “cross-cultural” relationship because everyone who enters a psychotherapist’s office is of a diverse culture from the psychotherapist no matter who they are. In other words, the psychotherapist must consider the differences between the two individuals in every case because every person walking into a psychotherapist’s office is of a different culture than the psychotherapist. Additionally, it is not wise to “judge a book by its cover.” In other words, a potential client may look or sound one way, but live in a completely different multicultural family than what appears at the initial visit. One may be an African-American client with a Chinese domestic partner. Psychotherapists should never make assumptions about a client’s culture, cultural sensitivities, nor a client’s family.

C....Counter-transference

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

A....Area of Competence

All psychotherapists should be able to handle all the diagnoses in the DSM – which is not realistic! What this actually means is that psychotherapists must be able to identify their limitations - when they should refer a client due to lack of training, counter-transference, or inexperience. In actuality, psychotherapists are expected to know how to handle all diagnoses, OR know when to refer out due to lack of expertise, competence, or desire to treat, OR know when to get proper consultation when gaining new skills and competencies.

R....Rule out General Medical Condition or Substance Abuse

It is mandatory to rule out any general medical condition or substance abuse that may reasonably be causing, or be related to, mental health symptoms. For example, a person who has panic attacks or any other “head-to-toe” symptoms of anxiety disorders may be suffering from a hormonal imbalance or thyroid dysfunction rather than an actual DSM diagnosis. General medical conditions (See Axis III in the DSM-IV-TR, APA, 2002) must be ruled out by a medical doctor prior to treatment for a mental disorder, especially one that includes physical symptoms. A psychotherapist cannot rule out a GMC or substance abuse in the blood stream (lab tests) because it is outside of his or her area of competence (medicine) (Harmell, 1999).

Q....Question the Reporter

It is not uncommon for a new client to attribute his or her range of symptoms to another person close to him or her such as a significant other or loved one. For example we might hear “My significant other is an alcoholic and I don’t know what to do” when the caller or our primary patient is actually the person with a drinking problem.

INTRODUCTION TO ACCOUNTABILITY

There are four mechanisms holding marriage and family therapists accountable for our actions as mental health professionals. A brief description of each follows:

Mechanism 1 – State Licensing Boards

A state licensing board is the agency that “giveth and taketh away” the ability to practice marriage and family therapy! It decides how many hours of continuing education must be taken to renew the license and continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychotherapist fails to respond to its dictates.

Mechanism 2 – Ethics Committees

There are two possible ethics committees that regulate marriage and family therapists. The first is the state ethics committee, known in California as the California Association of Marriage and Family Therapists Ethics Committee (CAMFT). CAMFT does adjudicate ethics violations in California. The second ethics committee is the American Association of Marriage and Family Therapists (AAMFT). This national ethics committee would only be involved if the state in which you practice did not have an ethics committee.

Mechanism 3 – Civil Suit for Malpractice

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

Mechanism 4 – Criminal Allegations (Attorney General Involvement)

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

REFERENCES

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

CAMFT (2002). Ethical Standards for Marriage and Family Therapists. San Diego: Author.

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

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

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

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

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

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

LEARNING OBJECTIVES FOR SECTION B

• To understand privacy, confidentiality and privilege
• To learn updates, California case law, current ethics codes, and standard of care for dangerous patients

INTRODUCTION TO PRIVACY, CONFIDENTIALITY & PRIVILEGE

Privacy is suggested by the 4^th Amendment of the Bill of Rights (December 15, 1791) of the Constitution of the United States. Basically, it gives people the “right to secure their houses, papers, and effects, against unreasonable searches and seizures…” (The United States Constitution). It is the most basic of the three terms (Cato Institute, 1776/2002).

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

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

Evidence Code 1013 defines “Holder of Privilege” as (see website for actual laws - http://www.leginfo.ca.gov/calaw.html)

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

Question 1

You receive a subpoena for the records of Jane Doe, a current patient. In order to release the records, you need a release for the records from Jane. This falls within the area of:

1. Privacy
2. Confidentiality
3. Privilege

Question 2

LaTesha is the sister of your deceased client. LaTesha calls you wanting her sister’s records and says she has sent you a self-addressed envelope in which you are to mail her sister’s records to her and would appreciate you sending them as quickly as possible for her own personal reasons. Can you release the records to LaTesha’s sister? Why or why not?

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

NOTE: See Section B - Introduction to Privacy, Confidentiality & Privilege for review of answer material below:

For Question 1, (c) is best answer, as subpoenas are related to release of legal documents. Even though a subpoena does not have the power of a court order, it still must be attended to and involves the element of privilege.

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

CAMFT ETHICS CODES THAT APPLY TO CONFIDENTIALITY

Above is the website of the CAMFT Ethical Standards. Please peruse all of Ethical Standard 2: Confidentiality. The relevant sections will be summarized below.

Overview

Standard 2: Marriage and family therapists have a unique responsibility to clients and patients because the client or patient may be more than one person. Since it is within the scope of practice for the marriage and family therapist to work with the patient’s interpersonal relationships, it is likely that at some point more than one person will be in the consultation room at the same time. Therefore, the confidentiality issues are tricky. The overriding principle in Standard 2 is to respect the confidences of all patients.

Standard 2.1: This standard goes into detail about disclosures, noting that marriage and family therapists do not disclose confidential information without the consent of the patient unless (1) mandated by law, (b) permitted by law, (c) when the psychotherapist becomes a defendant in a legal suit, or (d) when the patient gives previous authorization. California law with regard to mandated or permitted to breach (such as child abuse, the suicidal or dangerous patient, or other abuses that come to the attention of the therapist) will be discussed in later sections.

Standard 2.2: If a subpoena requests, or a court order demands, testimony or records in a situation where the psychotherapist is seeing more than one person at a time, this Standard suggests all members of the family or couple must agree and sign releases before the marriage and family therapist will release the records. This is excellent in ethical theory, but the legal requirements may force a different decision (to be discussed in a later section).

Standard 2.3: Marriage and family therapists are cognizant of the hazards of technological changes and make reasonable attempts to maintain confidentiality when transmitting and receiving information via electronic means.

Standard 2.4: Storing, transferring, and disposing of records is done properly and with the utmost respect to patient confidentiality.

Standard 2.5: Marriage and family therapists teach their employees the importance of confidentiality and take appropriate steps to ensure confidentiality be maintained.

Standard 2.6: In teaching and lectures, marriage and family therapists disguise patient identities unless written authorization has been previously obtained in accordance with other Standards of the document.

Standard 2.7: This Standard reviews the concerns a marriage and family therapist must consider when working with group therapy. CAMFT suggests explaining to the group the importance of respecting each other’s confidentiality and encourages psychotherapists to obtain an agreement to do so from each participant.

INTRODUCTION TO DANGEROUSNESS

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

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

In 1976, the California Supreme Court Justices made some important rulings that changed the responsibilities for all mental health professionals forever. Prior to the Tarasoff decision, Evidence Code 1012 required psychotherapists to keep all utterances confidential and Evidence Code 1024 required psychotherapists to disclose to a potential victim possible threats made against that person to the psychotherapist. Evidence Code 1024 further suggested psychotherapists disclose possible danger to property or danger to self (suicidal activity).

However, when Prosinjit Podder, a young man from India, fell hopelessly and madly in love with Tatiana Tarasoff, and later became outraged with dissatisfaction when her level of commitment to the relationship did not meet his own, he eventually murdered her after confessing his desire to cause her bodily harm to his psychologist at Cowell Memorial Hospital, an outpatient clinic serving UC Berkeley. (See Harmell, 1997, The Stab Felt Round the World: What you Need to Know about Tarasoff for a detailed review

The California Appellate court made a new interpretation of Tarasoff in 2004, which will be discussed later. For now, it is important to understand what the original ruling by the Supreme Court Justices ruled in order to understand the new interpretation of 2004.

This famous Supreme Court case law ruling in California (1976) was later codified in 1985 as follows:

PRE 2004 EWING V. GOLDSTEIN DECISION INTERPRETATION

Civil Code 43.92(a)

Communicated to psychotherapist directly by patient

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

Serious threat of physical harm which is imminent

• A proper dangerousness assessment must be used for evaluation

This will be discussed later in this section

Reasonably identifiable victim

• The justices said: if the psychotherapist can determine who the potential victim is “with a moment’s reflection” then the third determinant of Tarasoff is met

Civil Code 43.92(b)

Once the threat reaches the threshold of the three requirements in CC 43.92(a) above, then CC 43.92(b) must be followed as quickly as is reasonably feasible.

Warn potential victim(s)

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

Notify authorities

• This generally means the police, sheriff, DCFS, 911

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

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

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

Question 3 – TRADITIONAL MORE LIMITED INTERPRETATION OF TARASOFF

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

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

NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:

If you answered (b), you realized that the roommate told you about Frank being a danger to the fry cook; thus it is not Tarasoff UNDER THE OLD INTERPRETATION. Tarasoff dictated UP UNTIL RECENTLY you be told the threat against the identifiable victim directly from your dangerous patient. Here, the roommate told you.

Obviously this is an ethical situation in any event where you would instruct the caller how to proceed to help save the life of the fry cook (i.e., tell caller to inform the police or call McDonald’s management). Caution! Do not disclose the confidentiality of your patient. This could be a crank caller and not the real roommate. Use caution and do not panic in a situation where Tarasoff may need to be invoked.

CAMFT ETHICS CODES THAT APPLY TO DANGEROUS PATIENTS

Standard 2.1: This standard goes into detail about disclosures noting marriage and family therapists do not disclose confidential information without the consent of the patient unless (1) mandated by law, (b) permitted by law, (c) when the psychotherapist becomes a defendant in a legal suit, or (d) when the patient gives previous authorization. California law with regard to mandated or permitted to breach (such as child abuse, the suicidal or dangerous patient, or other abuses that come to the attention of the therapist) will be discussed in later sections.

UPDATES AND ADDITIONS TO TARASOFF

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

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

Her physician at USC forbade her to enter the program telling her she was inappropriate for the program due to her suicidal ideation and constant and serious attempts to take her own life. When she went to the director of the eating disorders program in an attempt to enter the program despite her psychiatrist’s protestations, the eating disorders physician contacted the USC treating and prescribing physician who failed to inform him of her severe suicidal behavior despite his extreme objection to her appropriateness for the eating disorders program; thus she was admitted into the eating disorders program as an inpatient.

Unfortunately she sneaked in prolixin tabs she had been hoarding and quickly overdosed (her mother failed to confiscate the oral prolixin which she took to Northridge with her). After 5 weeks in a coma, she was left with permanent brain damage. Mother sued Northridge who cross-sued USC. Mother won settlement awards from both USC physicians and Northridge physicians. This California appellate decision included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers when the patient is seriously dangerous to self.

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

Use caution here when exchanging information about a suicidal patient without release of information from the patient.

Bellah v. Greenson, 81 Cal.App.3d 614 (1978)
“Tarasoff does not extend to suicide… or does it?”

In Bellah, a California psychiatrist concluded his young adult patient, who was a serious drug addict, was suicidal, but he chose not to inform her parents for reasons that are not discussed in the case. The patient eventually overdosed at which time the parents sued with the goal of extending Tarasoff, or duty to warn of her dangerousness, to suicide.

It appeared that all three requirements of Tarasoff were met:

1. Communicated Directly by Patient to Therapist

The threat had been continuously communicated directly to the psychiatrist by the patient. Tammy Bellah told him she was doing drugs on a consistent basis and did not intend to stop

2. Serious Threat of Physical Harm that was Imminent

Consistent drug use throughout the treatment with Dr. Greenson

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

Tammy Bellah, the patient herself

The Bellah court refused to extend Tarasoff to suicide. The court ruled that Tarasoff was meant to protect a third party victim of the psychotherapist’s patient, not the patient him or herself. Thus, Tarasoff was not extended to suicide in 1978. Indeed, in a recent search there were no cases, although certainly one may exist, where Tarasoff had been formally extended to include suicide such that it has become case law.

However, Meyer (1997), in his analysis of the Gross v. Allen (1994) case concludes ”Bellah has fostered a false sense of security” all these years as Meyer feels the Tarasoff court, found an implicit “duty to protect suicidal patients by intervening to prevent suicide… all along in the original Tarasoff decision, and that Gross held that Tarasoff does not state… that a therapist may be silent when to speak may save the life of his patient. To the contrary, to the extent that Tarasoff considers the matter, it finds a duty to speak. (p. 367.)

In other words, in Meyer’s (1997) re-analysis of the Bellah decision, it seems the actual reason Tarasoff was not extended to suicide in the Bellah case is because the STATUTE OF LIMITATIONS HAD RUN OUT TO FILE A CASE, not because the court decided in its deliberations not to extend the Tarasoff decision to suicide.

What does this mean to marriage and family therapists? Meyer writes that Tarasoff was not extended to include suicide in the Bellah case, NOT because the court believed it should not be, but because the statute of limitations had run out for the case to be considered. If this is indeed true, then, since Bellah will not be retried, we are left with a good deal of uncertainty.

Well-trained psychotherapists have always handled suicidal patients with proper care, yet not the same care as Tarasoff situations. If Meyer’s summation is correct, then suicide may be treated as a Tarasoff situation after all. As of now, the safest approach is to consult with one’s insurance carrier’s legal department, CAMFT, and/or one’s personal professional attorney, then document the consultation.

In sum, Meyer reports that the Bellah court, in 1978, did not try the case because the statute of limitations had run out, NOT because they did not wish to extend Tarasoff to suicidal patients. Thus, extending Tarasoff to suicidality has not been formally tried in a court setting, with the exception of Gross v. Allen.

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

Question 4

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

1. Take steps to prevent the threatened danger to the boss
2. Call and warn the boss and notify the police
3. Hospitalize Carrie
4. Contact Carrie’s support system immediately

The best answer here is (a). It is too soon to invoke Tarasoff (the second answer) as it would be more appropriate to take steps first (see above discussion of steps to take). Hospitalization is too radical and is nearly impossible without patient permission at this point; thus the third answer (c) is inappropriate. The last answer (d) is a subset of the first answer, thus the first (a) is a more inclusive answer.

New Addition to Tarasoff in California

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

In California, an entirely new twist in duty to warn and protect has been decided once again. It may be that other states will soon decide to take up the call, and make changes, updates or additions to their Tarasoff laws due to this new case law decision which has recently become precedent in California.

The Facts

David Goldstein was a marriage and family therapist who was treating Geno Colello, a former member of the Los Angeles Police Department, between 1997 and 2001, for work-related emotional problems and problems related to a breakup with his girlfriend. Colello became increasingly depressed and despondent over the breakup after learning of her romantic involvement with another man. Goldstein met with Colello on June 19, 2001, spoke with him by telephone June 20 and 21 when Colello told him he was not overtly suicidal, but did admit to giving some thought to suicide. Goldstein and Colello discussed hospitalization, and Goldstein sought permission to speak with Victor Colello, Geno’s father.

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

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

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

The Trial

Goldstein moved for a summary judgment arguing the Ewing’s’ action was barred (in California) under California Civil Code 43.92a which required the threat of serious physical harm to the potential victim be made directly to the therapist by the patient, not by the patient’s father. Here, Goldstein argued, he was told of the threat to Keith Ewing by Geno Colello’s father Victor Colello, not by Geno himself. Goldstein claimed Geno never revealed Keith’s surname to him. (See three elements of Tarasoff above).

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

The trial court found the Ewings had failed to follow the statutory requirements necessary to defeat Goldstein’s immunity using CC43.92a claiming the patient himself had not communicated the threat to the therapist, the father had. The trial court also found Goldstein did not have enough information to rise to the level of the serious threat of physical violence required to trigger Goldstein’s liability in a Tarasoff case. The Trial Court granted summary judgment.

The Ewing’s Appeal

The Ewings make two primary points in their appeal:

1. The trial court’s construction of CC43.92 was unduly narrow – without quoting the law here, most would agree it is rather “wordy.” However, since it was codified in 1985, there has never been any question about how to interpret what it means. Communicated directly by patient to therapist is clear: but in this case, the appellate court made new law (see explanation below)

2. A communication from a patient’s family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of CC43.92.

The trial court construed the statute in its most usual and ordinary meaning: it precluded any liability upon Goldstein because he did not hear the threat from the patient but from the patient’s father about the patient. However, as seen below, the appellate court disagreed.

The Appellate Decision July 15, 2004

A communication from a family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a “patient communication” within the meaning of section CC43.92.

When the communication of the serious threat of physical violence is received by the therapist from a member of the patient’s immediate family and is shared for the purpose of facilitating and furthering the patient’s treatment, the fact the family member is not technically a “patient” is not crucial to the statute’s purpose (p.8).

A therapist’s duty to warn a victim arises if the information communicated to the therapist leads the therapist to believe his or her patient poses a serious risk of grave bodily injury to another (p. 10). The intent of the statute is clear. A therapist has a duty to warn if, and only if, the threat which the therapist has learned – whether from the patient or a family member – actually leads him or her to believe the patient poses a risk of grave bodily injury to another person.

Conclusion

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

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

In California, the Ewing v. Goldstein appellate decision is now case law which is precedent. All therapists are to follow this new ruling in California. There will be many new articles and interpretations for years to come about how to deal with this new ruling in handling patient disclosures, and now, family disclosures.

UPDATES AND ADDITIONS TO TARASOFF

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

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

In the Hedlund case, an unmarried couple received counseling from an Orange County Counseling Center intern. The man made a threat to the woman during a session, which he eventually acted upon by shooting her while she sat in her car shielding her 3-year old son from the bullet.

The judge declared in the appeal that the son was owed a duty to be protected by the counseling center psychotherapists (along with protecting the mother) under the dictates of Tarasoff. Thus, the extension to Tarasoff of warning “all foreseeable bystanders” became precedent but not statute.

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

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

In this famous case, an adult man told his psychologist he was so angry with his father he was going to burn down part of the father’s farm. The psychologist in Vermont evaluated this situation for Tarasoff and decided it did not meet the threshold for a mandatory report. Later, the patient did burn down a portion of the farm which was uninhabited. The court disagreed with the psychologist and ruled in favor of the father that he should have been given a Tarasoff warning of the danger.

This is the only ruling that seems to have survived the years with regard to the damage to property section of California Evidence Code 1024 in which psychotherapists may include damage to property under the Tarasoff mandate. In sum, it seems that the use of arson in an attempt to damage property could be considered a Tarasoff mandate given the Peck ruling of 1983.

Once again, the standard of care is to consult with an expert (ethics expert, attorney, your malpractice insurance company, etc.) and document your decision- making method prior to breaching the confidentiality of a patient.

Jablonski by Pauls v. United States, 712 F.2d 398 (1983)
“Attempt to seek past records.”

This California case is known as the “Veteran’s Administration (VA)” Case in which the girlfriend of a veteran was murdered by a man being treated as an outpatient at a local VA. The precedent set here is the judge ruled that, in settings where it is possible, psychotherapists are required to attempt to seek the past therapy records of present patients they are treating who are currently dangerous to others.

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

Difference Between Tarasoff, Homicide, and Suicide

Tarasoff / Ewing

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

Homicide

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

Suicide

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

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

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

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

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

NOTE: See Section B – Tarasoff & CC 43.92 a&b for review of answer material below:

Question 5

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

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

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

ASSESSMENTS FOR VIOLENCE & SUICIDE

Assessment for Violence or Tarasoff

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

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

Suicide Statistics (Baerger, 2001)

• Ninth leading cause of death in US
• Third leading cause of death of Americans between 15 and 24 years of age
• Twenty percent of psychotherapists will lose a patient to suicide
• Suicide ranks second in percent of total cost of APA claims paid out

Reality:

• Chance of suits are between 1-12%
• Depending upon the type of suicide & patient
• I.e. inpatient vs. outpatient
• ~6% proceed to trial
• Mostly involve INPATIENT standard of care
• 80% continue to be won by clinicians
• Steady rise of malpractice actions for OUTPATIENT suicides
• Patterson et al. assessment created 1983
• To identify suicidal from non-suicidal patients
• Semi-structured interview
• Guidelines for clinical action
• 20-25 minutes
• Individual administration
• Juhnke evaluated reliability and validity

American Association of Suicidology
4201 Connecticut Ave. NW
Washington, DC 20008
202-237-2280

Assessment for Suicide (Patterson et al., 1983; Juhnke, 1994)

This is a tried-and-true and well-known suicide assessment called the SAD PERSONS that was originally developed by medical residents in a crisis situation who wanted to identify which patients were at risk for suicide from those who were not. Their method was reviewed once again in 1994 (Juhnke, 1994). Additionally, in April, 2003, William H. Cambell, MD discussed some ideas for a revised SAD PERSONS scale eliminating the scoring system (Cambell, 2003). Juhnke has adapted the original SAD PERSONS for use with children and adolescents (Juhnke, 1996).

The SAD PERSONS Suicide Assessment for Risk Model suggests:

S….Sex

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

A…Age

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

D….Depression

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

P….Prior History

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

E…Ethanol Abuse

Funnily, in 1983 the authors wanted to make the initials work: thus they plugged in “ethanol” rather than alcohol, which would have made it SAD “PARSONS”!! Their research indicates alcohol and drug abuse increases the likelihood of suicide.

R….Rational Thinking Loss

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

S….Support System Loss

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

O….Organized Plan

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

N….No Significant Other

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

S….Sickness

Has the person or a loved one recently been diagnosed with an illness or disease that has made him or her want to end his or her life? This element could be paired with the “D” element of depression.

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

Question 7

Vignette – Danny

Danny is a 28-year-old man who you have been seeing for three months under his Aetna Insurance at work. He has just told you his girlfriend has broken up with him. He is not particularly happy at work but continues to get up every morning, groom himself, catch the bus, grab something to eat, and get to his desk on time.

He tells you he won’t be seeing you for a few months because he has decided to take some time off of work. It seems he has given many of his possessions away because he “is paring down my possessions” and “doesn’t need much anymore.” Since he lives in a furnished, month-to-month apartment, he tells you he has no ties and can “leave anytime and with no looking back.”

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

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

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

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

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

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

Question 8

What would you do to further protect Danny from harm without involuntarily hospitalizing him?

1. Call his family and have them watch him 24 hours a day for awhile
2. Call his insurance company and prepare for a voluntary or involuntary hospitalization
3. Take steps to stop the danger
4. Have him make a contract not to harm himself

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

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

REFERENCES

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

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

Campbell, W.C. (April, 2004). Current Psychiatry Online. http://www.currentpsychiatry.com/

Cato Institute. (1776/2002). The Declaration of Independence and the Constitution of the United States. Washington, DC: Author.

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

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

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

Juhnke, G.E. (1994). SAD PERSONS scale review. Measurement & Evaluation in Counseling & Development, 27, 325-328.

Juhnke, GE (1996). The adapted SAD PERSONS: An assessment scale designed for use with children. Elementary School Guidance and Counseling, 30, 252-258.

Meyer, C. (1997). Expanding Tarasoff: protecting patients and the public by keeping subsequent caregivers informed. The Journal of Psychiatry & Law, fall, 365-375.

Otto, R. (1992). The prediction of dangerous behavior: A review and analysis of “second generation” research. Forensic Reports, 5, 103-133.

Patterson, W., Dohn, H, Bird, J., & Patterson, G. (1983). Evaluation of suicidal patients: The SAD PERSONS scale. Psychosomatics, 24, 343-349.

Simon, R. (2001). Psychiatry and the Law. Washington, DC: American Psychiatric Press.

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

LEARNING OBJECTIVES FOR SECTION C

• To gain knowledge about patient record keeping and administration (i.e., proper intake procedures)
• To learn to properly evaluate taking new referrals
• To learn updates about HIPPA and patient records

PROTECTIVE INTAKE: TELEPHONE OR IN OFFICE

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

Elements to consider are as follows:

• Referral source – could taking this new patient create any multiple relationships for you? Are you currently seeing this caller’s best friend, cousin, etc.? Is this a close neighbor of yours when you live in a large town and there are a number of other therapists to refer this patient to? Is this an appropriate person for you to treat?
• There is absolutely nothing unethical nor illegal in treating people who know each other, or are in the same family as long as the treater has the proper training, education, and experience. What this means is that if one plans to see both parties of a couple, the psychotherapist must have the training and ability to handle this type of arrangement. If a psychotherapist does not have such training or does not have the personality to tolerate such confidentiality complexities, then one must either refer or receive consistent consultation until skill is achieved.
• Emergency contact – be certain to get the name and number of an emergency contact individual as soon as possible in case any of the “red flag” issues occur early on (suicide, homicide, Tarasoff, any of the abuses etc.)
• Psychiatric history – much can be gleaned from discovering current medications being taken, past psychiatric hospitalizations and diagnoses, and current and past history of treatment. For example, if in an intake, the therapist discovers the potential patient is being prescribed thorazine, one might begin to consider certain diagnoses.
• Presenting problem – why is the person seeking treatment now? Why not return to a previous therapist if there was one? If a patient is in the middle of suing a former therapist, is this something one wishes to get involved with which could mean subpoenas or court attendance.
• Theoretical orientation – does the psychotherapist’s theoretical orientation fit the need of the patient and the presenting problem appropriately? Can the psychotherapist get consultation in order to gain skill in an appropriate theoretical orientation for this patient? Is time an issue or is the patient in a crisis and does he or she need to be referred to someone competent in the required theoretical orientation immediately? For example, treatment for severe obsessive compulsive disorder or tourettes disorder which are specialty areas.
• Legal / Ethical Considerations – is there any reason it would not be appropriate for you to consider treating this person? Do you WANT to treat this person?
• Rural versus large city considerations
• For in-depth discussion of rural practice issues see
  Campbell & Gordon, 2003
• Please review Section A for CCARQ in an intake
• Level of Expertise – if you are going to begin a new treatment style, a new population, or new DSM diagnosis with this patient, are you able to get a proper and appropriate consultation? If not, it may be best to refer the patient if you do not have current expertise.

Definition of Terms:

• Competence – one who is sufficient, adequate or capable in the area being discussed (Webster’s)
• Specialist – One who specializes in a particular field of study (Webster’s)
• Expert – Having much training or knowledge in a particular field (Webster’s).

As you can see, with each level you stick your neck out further! The highest level of competence is expert. This means that the person has either done research, written on, read the history of the topic, and/or speaks, lectures or teaches on the topic. Thus, most psychotherapists are specialists in some areas (children, ADHD, depression, etc.), but may not reach the level of an expert. The former California Association of Marriage and Family Therapists (CAMFT) attorney Zachary Pelchat cautions “Keep in mind that by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (p. 25.) All are competent to practice by virtue of being licensed to practice. By using the term specialist, the clinician is inferring he or she has more knowledge and is practicing a “higher standard of care when dealing in their specialty… keep in mind… when by citing yourself as a specialist, you will likewise be held to the standard of care that would be appropriate for someone identifying him or herself as a specialist” (Pelchat, 2001, p. 25),

INFORMED CONSENT aka CONSENT FOR TREATMENT

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

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

Limits of Confidentiality and Privilege

To review, confidentiality is an ethics term referring to the contract between the patient and psychotherapist where the psychotherapist “promises” to keep all communications private except under certain legally and ethically defined situations. Privilege refers to

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

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

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

• Voluntariness – Is your patient giving consent voluntarily? Even if it is a couple, and one partner is reluctant, this still constitutes voluntary consent because the person is choosing, of his or her own volition, to attend therapy. This is true for hostile teens as well as those who choose treatment versus jail time (court referred cases). This may not be true when the court requires treatment as a part of the sentence (“court ordered”).
• Capacity to give consent – Capacity to give consent and to choose to be in psychotherapy is generally assumed unless there are court documents to prove otherwise. If a person is too upset to properly consent for treatment, the standard of care allows you to hold off in a crisis situation. The general rule suggests getting informed consent formally at the onset (early in the treatment) unless otherwise indicated. If unsure, always seek legal or ethics consultation.
• Information – This element refers to giving the information to the patient in a language and at a level the patient can easily understand. If the person’s first language is other than English, there must be a translator (family member or appropriate other) or it must be given in the language of origin. In other words, it is up to the psychotherapist to make certain the consent is truly “informed”.
• Using a family member to translate informed consent is not considered unethical; however, the use of a family member in the sessions as a translator is not considered appropriate due to confidentiality.

Finally, as Guithiel said in 1980, “If it isn’t written down, it didn’t happen”. Document in the patient’s chart that informed consent was given, the patient agrees to treatment voluntarily, and has the capacity to consent voluntarily. Most individuals have WRITTEN forms that cover these issues, especially with HIPPA provisions being added recently (more later).

Question 1

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

1. Yes, you have to get informed consent at the outset of treatment
2. Yes, he is an adult who is capable, voluntary, and speaks my language
3. No, he does not have the current capacity to give informed consent

Question 2

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

1. “Information not Given”
2. “Breach of Contract”

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

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

CAMFT ETHICS CODES THAT APPLY TO INFORMED CONSENT

STANDARD 1.4.1 – Marriage and family therapists must inform patients of risks and benefits of psychotherapy.

STANDARD 1.4.2 – Marriage and family therapists inform patients about their availability in emergencies and other contacts between sessions.

STANDARD 1.4.3 – Marriage and family therapists inform patients that decisions regarding their own relationships are up to the patient.

STANDARD 1.4.4 – Marriage and family therapists obtain written informed consent.

STANDARD 1.4.5 – Marriage and family therapists inform patients of the limits of confidentiality and privilege.

STANDARD 1.4.6 – Marriage and family therapists inform patients of the education, training, and experience at an appropriate time.

STANDARD 1.4.7 – Marriage and family therapists inform patients of the limitations of confidentiality when using electronic means.

STANDARD 1.4.8 – Marriage and family therapists are clear from the outset about their fees.

ACCEPTING REFERRALS

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

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

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

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

Referrals From Current and Past Patients

Accepting or declining referrals from current or former patients involves three primary potential ethical conflicts for the marriage and family therapist:

(1) exploitation

(2) multiple relationships

(3) confidentiality

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

Since gifts are generally kept out of the therapeutic relationship, should there be a strong case for a referral being a gift, it could be considered a multiple relationship, according to some authors (Shapiro & Ginzberg, 2002). “We must attend to the meaning of a referral as a gift and beware of the possibility of becoming indebted to our patients” (Shapiro & Ginzberg, 2003, p. 259). These authors state:

It is our position that when a patient makes a referral that is likely to impinge on his or her treatment (e.g., spouse, family member, sexual partner, close friend, coworker, or roommate), it is in the patient’s best interest for the therapist to decline. (Shapiro & Ginzberg, 2003, p. 259)

Once again, there is absolutely nothing unethical nor illegal in treating people who know each other, or are in the same family as long as the treater has the proper training, education, and experience. What this means is that if one plans to see both parties of a couple, the psychotherapist must have the training and ability to handle this type of arrangement. If a psychotherapist does not have such training or does not have the personality that can tolerate such confidentiality complexities, then one must either refer or receive consistent consultation until skill is achieved. It is always appropriate to “check in” with a patient to see if they are opposed or not to you treating the referral as long as it would not be a breach of confidentiality to either party. In reality, this issue has been the subject of a number of complaints to licensing boards and ethics committees when mishandled by psychotherapists.

Once a Patient, Always a Patient?

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

The Severely Disturbed Patient

A greater degree of pathology should dictate the psychotherapist’s decision whether or not to accept a referral from a current or former patient. The patient’s level of ego strength, ability to share, maturity, and diagnosis are critical factors in the final decision.

Rural Areas versus Large Towns

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

Counter-transference

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

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

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

Resistance to Examining the Referral Dilemma

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

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

Implications for Practice

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

Referral from a Current Patient

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

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

1. What is your relationship to the referral source?

2. Why did the referral source refer the patient to you?

3. If the referral source is a current patient, what risks to the therapeutic relationship might acceptance of the referral introduce? What is the degree of risk?

4. How would the current patient feel if you accepted the referral?

5. How would the current patient feel if you declined the referral?

6. What is the relationship of the referral source to the referred patient?

7. If there is a relationship between the referral source and the referred patient, does accepting the referral jeopardize confidentiality, therapeutic boundaries, or the psychotherapist’s equanimity?

8. Is there a dual relationship between you and the patient (e.g., is the referred patient a neighbor, colleague, supervisee, family friend, etc.)?

9. If a dual relationship exists, what are the implications of extra-therapeutic contact --- direct or indirect --- for you, the patient, and the treatment?

10. Could you comfortable justify your decision to a colleague and/or an ethics review board?

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

CAMFT ETHICS CODES THAT APPLY TO REFERRALS

Standard 1. – Marriage and family therapists respect the welfare of patient and families and ensure their services are used appropriately. Marriage and family therapists take special care to meet their professional responsibilities to patients.

Standard 1.2 – Marriage and family therapists take precautions to avoid multiple relationships.

STANDARD 9 – FINANCIAL ARRANGEMENTS

Standard 9. – Marriage and family therapists conform to acceptable professional practices when making financial arrangements with patients.

Standard 9.1 – Marriage and family therapists do not accept money for referrals.

Standard 9.2 – Marriage and family therapists never exploit their patients financially.

Question 3

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

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

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

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

PATIENT RECORD KEEPING GUIDELINES

Stromberg et al. (1988), a group of eight attorneys who were consulted by the American Psychological Association in the 1980s, said it well: “Detailed records usually help rather than hurt a health care professional in defending against claims… sloppy, sparse records … appear unprofessional, uncaring, haughty or deceptive” (p. 487). The primary purpose in keeping records is continuity of patient care in the event the psychotherapist must transfer care to another professional.

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

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

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

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

How Long Should Patient Records be Retained?

California Health & Safety Code 123145 requires that certain entities retain patient records at least seven years after cessation of services or for at least one year past majority. What this actually requires is that clinics and hospitals and other entities mentioned in this law must keep the records of minors at least one year after majority (18 years old) and a minimum of seven years (Harmell, 1997).

Unusually, there is no California law that dictates how long private practice clinicians must retain patient records. Experts from the American Psychological Association maintain that psychologists should follow the Specialty Guidelines for the Delivery of Services (1981) Section 2.3.4 when there is no state statute that gives absolute guidelines to follow (Caudill & Pope, 1995; Harmell, 2000); Stromberg et al., 1988; Bennett, 1990). CAMFT has suggested that marriage and family therapists keep private practice patient records for at least ten years. It is my suggestion that all psychotherapists maintain private practice records under the APA Specialty Guidelines for Delivery of Service because it can be found in writing since 1981 as follows:

Specialty Guidelines for Delivery of Services Section 2.3.4:

1. Full records be kept for 3 full years
2. Full or summary records be kept for additional 12 years
3. Records kept for a total of 15 years

In other words, the American Psychological Association has suggested in writing since 1981, in states such as California where there are no state laws for private practice record retention, psychologists are to follow the Specialty Guidelines of 1981, despite the fact that they were written so many years ago. Since this is the only actual documentation of record retention for private practice in California, it has been suggested that all psychotherapists in California abide by this suggestion (Harmell, 2000).

Question 2

What does CAMFT Standard 1.4.4 have to say about the status of informed consent from a patient?

1. It can be verbal
2. It must be written
3. It must be received during the first session

NOTE: See Section C - CAMFT Standard 1.4.4 which is applicable to informed consent for review of answer material below:

The best answer is (b) as discussed in Section C. Remember, if it isn’t written down, it didn’t happen.

Chart Notes

There are many good treatment planners aiding clinicians in preparing chart notes (see The Adult Psychotherapy Progress Notes Planner by Arthur E. Jongsma, Jr.; Therapist’s Guide to Clinical Intervention by Sharon L. Johnson) for detailed descriptions. All psychotherapy notes are under subpoena and court order. (Subpoenas and court orders will be discussed later in detail), There is no such thing as what are sometimes called “shadow notes” which refer to personal notes the psychotherapist takes and uses for consultation, counter-transference consultation, and peer supervision groups. Any notes that have to do with a specific patient may be subject to subpoena (Caudill & Pope, 1995; Thompson, 1990; Bennett et al., 1990). In fact, Thompson (1990) notes, “Many therapists keep shadow notes containing personal speculations… the legal status of such records is largely undetermined” (p. 111). Psychotherapists must know case law and get consultation from experts on a case-by-case basis.

Stromberg et al. (1988) take a very strong stance in this area. They note many psychotherapists are under the false belief that “process” notes are private and the property of the psychotherapist. This couldn’t be more untrue according to these attorneys (Stromberg et al. (1988). However, in the terminology, “progress” and “process” notes are considered different. HIPPA now refers to “process” notes as “psychotherapy” notes.

Question 3

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

1. True
2. False

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

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

HIPAA AND PATIENT RECORDS

Once again, there are numerous courses both online and in person where psychotherapists can learn how to become HIPAA compliant. Here, the basics will be discussed in order to integrate record keeping into the discussion with HIPAA compliance.

The Health Information Portability and Accountability Act (HIPAA) dictates therapists follow new and complicated federal guidelines with regard to confidentiality of patient records for storage, informed consent, employee training, security of records, and certain electronic transactions of patient information. Normally federal law supersedes state law; with regard to HIPAA, psychotherapists are instructed to follow whichever law protects the patient’s privacy more adequately and completely. Psychotherapists are required to study both federal and state laws that are applicable and decide which ones supersede the others! Fortunately, many available courses do this work for clinicians.

Electronic transmission refers to computer transmission of information and computer faxes, not telephone lines nor free standing fax machines. If you receive or send patient information via your computer, either by a computer fax or email, you are required, under federal law, to be HIPAA compliant. If you use telephone lines verbally, free standing faxes, or snail mail for transmission of patient information, you are not required to be HIPAA compliant. However, if you use any billing service that does any such transactions via computer lines or computer faxes, then you are required to make your office HIPAA compliant even if you personally do not transmit information via the electronic methods included in HIPAA. Additionally, you are required to have a contract with the billing agent guaranteeing he or she is, indeed, following HIPAA guidelines on your behalf.

HIPAA’s purpose is to “cut back” on paperwork by using primarily computer storage and transactions. Some experts say all psychotherapists will eventually have to be HIPAA compliant whether or not they make electronic transactions. In fact, all psychotherapists in the state of New York, whether or not they transmit electronically, are required to be HIPAA compliant. Stay tuned!

Question 4

HIPAA refers to a group of federal laws