"I Hate It When That Happens..." - Law & Ethics For Social Workers, Revised 2008 by Pamela H. Harmell, Ph.D. with Ingrid Kohn Paymar, LCSW 3 Credit hours - $44 Last revised: 06/21/2008 Course content © copyright 2005-2008 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, social workers will be able to:

• Briefly state the foundation for the evolution of social work ethics
• Using critical thinking skills, apply current NASW or CSWA Codes of Ethics to three patient care ethical dilemmas
• Name the four required elements for a malpractice suit and give four tips for minimizing the risk of such a suit
• Explain the steps to take with a dangerous client, based on mandated reporting laws of Tarasoff and Ewing
• Use the 'SAD PERSONS' assessment tool to assess risk of suicide
• Describe five common boundary challenges for therapists and how to handle them, based on professional values, attitudes, and beliefs
• List several pitfalls (and how to avoid them) in interviewing suspected victims of child abuse
• Address social injustice through recognizing the signs of elder abuse
• Discuss professional behavior related to one current issue of confidentiality, privilege, HIPPA, record keeping, or avoidance of fraudulent billing practices

AUTHOR DISCLAIMER

Thank you for deciding to take this course!

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

The authors cited are accepted and published experts in the field of legal and ethical issues in psychotherapy. Cited herein are current opinions, case law when applicable, California statute as examples of state statutes, and interpretations of the National Association of Social Workers (NASW) Code of Ethics, approved in 1996 and revised in 1999. When discussing situations that are strictly clinical or more pertinent to ethics codes related to clinical issues, the Clinical Social Work Association (CSWA) Code of Ethics, approved in 1997 and reviewed in 2006, is used in this course. You will find the website below for downloading or linking to both of these ethics codes.

Why there are Two Codes of Ethics

The NASW is designed for all social workers and uses the term “social worker” (SW) or “social workers” throughout the text. On the other hand, the CSWA is specifically designed for clinicians who are trained in the social work profession.

The terminology used in this document is “social worker” (SW), and “clinical social worker” (CSW) when there is an emphasis on clinical work. Other terms are “psychotherapist” and “therapist.”

Not a Legal Document

Since this disclaimer applies to each section of the course, it will only be stated once in this beginning Section A. This course has been updated and has the most current information available. However, it is incumbent upon each individual social worker to verify laws and standard of care in his or her location from time to time. If you have taken this course previously, please note that Section A is foundational and meant to have repeat information for those who have not yet taken this course.

Good Luck and I hope you enjoy the journey!

LEARNING OBJECTIVES FOR SECTION A

• Define the basic elements of malpractice
• Become familiar with the National Association of Social Workers (NASW) Code of Ethics, and the Clinical Social Work Association (CSWA) Code of Ethics
• Compare and contrast the NASW and CSWA

INTRODUCTION TO COURSE

State licensing boards are responsible for social work licenses. The mission of all licensing boards is protection of the consumers of the state in which the psychotherapist conducts practice, and to establish and maintain standards for competent and ethical behavior of the professionals who are under the jurisdiction of that licensing board. For licensure requirements by state, see: List of state social work boards.

From time to time in this course, you will be given brief quizzes that are aimed at helping you learn and retain the material.

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

How to Display or Print the Ethics Codes

To take this course you will need access to two ethics codes, one from the Clinical Social Work Association (CSWA) and the other from the National Association of Social Work (NASW). The easiest way is to click here to view the CSWA code in a separate window and click here to view the NASW code in a separate window while taking this course. You may wish to print the codes, or you may simply refer to the appropriate code window while reading the course material. Links to the codes are provided at appropriate times during the course, and will bring up a separate window.

Statement of Mission and Values in Social Work

According to The Preamble to the Code of Ethics of NASW:

The primary mission of the social work profession is to enhance human well-being and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty.

Historically, social work has focused on the well-being of the individual in his or her social context, the environment factors that create challenges to functioning, and concern for social justice and the welfare of society as a whole. Social workers strive to empower clients to address their own needs. Social workers also strive to promote responsiveness of social institutions to the needs of individuals and to social problems.

Values and ethics in social work, from its inception to the present, include sensitivity to diversity and efforts to end discrimination and oppression. Social work activities include direct practice, community organizing, training and consultation, advocacy and political action, policy development, research and evaluation.

Social work ethics derive from core values, which have guided the profession’s mission throughout its history. These core values, as stated in the NASW Code of Ethics, are 1) Service; 2) Social justice; 3) Dignity and worth of the person; 4) Importance of human relationships; 5) Integrity; and 6) Competence. Social work’s core values inform social work’s ethical theories and provide the foundation for application of these theories (Abramson, M. 1996; Loewenberg, F.M., & Dolgoff, R., 1992, Reamer, F.G., 1998). For additional reading see the reference list at the end of this section.

Three Hours of Law & Ethics Every Renewal

Licensing boards are now requiring a one to six-hour course in Professional Ethics for every renewal of license, depending on the state. 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 along with updates and expansions to current standard of care and ethics.

What is a Licensed Social Worker or Licensed Clinical Social Worker?

Different states have different titles and role definitions for Licensed Clinical Social Workers. Check with your State licensing board for your correct title and role definition at: List of state social work boards. Throughout this course we will use the term Licensed Clinical Social Worker.

What is the Scope of Practice of a Licensed Clinical Social Worker?

The scope of practice of clinical social work varies by State and is defined by the State licensing boards. In general, it is defined as a service in which a special knowledge of social resources, human capabilities, and the part that unconscious motivation plays in determining behavior, is directed at helping people to achieve more adequate, satisfying, and productive social adjustments. The application of social work principles and methods includes, but is not restricted to, counseling and using applied psychotherapy of a non-medical nature with individuals, families, or groups; providing information and referral services; providing or arranging for the provision of social services; explaining or interpreting the psychosocial aspects in the situations of individuals, families, or groups; helping communities to organize, to provide, or to improve social or health services; or doing research related to social work (Pines, 2004, p. 85; Erikson & Conidaris, 2001, p. 494).

Scope of Practice and Scope of Competence

Many questions arise regarding the scope of practice of any clinician and concerning what professional practices are within the purview of the license held by that particular clinician. The scope of competence is established by education, training, and experience. A CSW must gain competence to work with various segments of the population prior to taking a client within that population. For example, one may not work with children until and unless the clinician has experience through education, workshops, or supervised training in working specifically with children.

On the other hand, the scope of practice is determined by the laws that regulate one’s license and establish the duties of the professional holding the license. Each license within the state has its own reason for existing separately and distinctly from all other licenses in that state. The legislatures require there be a reason for each distinct license with a different and varied scope of practice for each. Otherwise, there would be no need for the various licenses offered within each state (i.e., Psychology, Social Work, Marriage and Family, Addiction Counseling).

BRIEF INTRODUCTION TO 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 HIPAA, when state law gives more protection to patient’s records

If you guessed (c), you are correct! With HIPAA (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 HIPAA laws. (You may wish to record your answer for future review.)

INTRODUCTION TO BOTH SOCIAL WORK ETHICS CODES

The National Association of Social Workers (NASW)

THE NASW CODE OF ETHICS

The national version of the ethics code (NASW) was approved by the delegate assembly in 1996. It is intended to serve as a guide to social workers who may or may not be clinical social workers, for everyday professional conduct. It has four sections, the last of which includes 51 specific numbered standards that will be the focus of this course along with the Clinical Social Work Association (CSWA) Code of Ethics for clinicians.

The chart that follows displays the four major sections in more detail:

The Clinical Social Work Association (CSWA)

THE CSWA CODE OF ETHICS

In the Preamble of this document, CSWA states:

The objective of the profession of clinical social work is the enhancement of the mental health and the well-being of the individuals and families who seek services from its practitioners. The professional practice of clinical social workers is shaped by ethical principles, which are rooted in the basic values of the social work profession. These core values include a commitment to the dignity, well-being, and self-determination of the individual; a commitment to professional practice characterized by competence and integrity; and a commitment to a society that offers opportunities to all its members in a just and nondiscriminatory manner (CSWA, 2006, P. 1).

The Code of Ethics of the CSWA is specific to clinical social work and will be quoted when relevant in this course. The chart below describes the contents of the CSWA Code of Ethics:

The purposes of an ethics code for psychotherapists are many-facetted, including establishing the integrity of the profession, provision of a guide for proper and expectable professional behavior, securing public trust, self-monitoring, and establishing the ethics committee’s ability to adjudicate (to act as judge when another social worker violates an ethics code).

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

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

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

Question 2

The NASW and CSWA Ethics Codes are legal documents.

1. True
2. False

Question 3

Social workers can only work in hospitals or clinics and not in private practice settings.

1. True
2. False

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

Question 2, 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 3’s answer is false (b), as explained earlier as well.

ELEMENTS OF MALPRACTICE

There are four elements to 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, are reflected in out-of-court settlements.

A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether the psychotherapist has breached the standard of care (Black’s Law Dictionary, 1996). This is also known as “negligence.” (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 that 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 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.

Breach of Standard of Care. The broad term, standard of care, 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 statutes in each State and by 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 in that State. 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 that 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 his or her 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 Brown saying she is suicidal and wants to “do herself in.” 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 and a bottle of vodka in a suicide attempt. When she is feeling suicidal and depressed the next day and calls Therapist Brown, 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 relationship, 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 Code of Ethics for LCSWs, the statutes of his state, or the recent case law. Therefore, he probably:

1. Did not create a Duty of Care
2. Breached the Standard of Care
3. Displayed 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 had Brown treated her in a more appropriate manner, this could be used as 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 is 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’s answer is (c) – demonstrable harm; since his patient wound up in the hospital, harm could be demonstrated. If it could be proven, which is 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; VandeCreek & Knapp, 2000; Cranston et al., 1988):

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

INTRODUCTION TO ACCOUNTABILITY

There are four mechanisms holding LCSWs accountable for 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 LCSWs; as discussed earlier in this course, these are the Clinical Social Work Association, and the National Association of Social Work. Each has separate and distinct Codes of Ethics to which social workers must adhere.

Mechanism 3 – Civil Suit for Malpractice

Mechanism 3 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 damage, and the only remedy is money. However, punitive damages are also a possibility where the court awards extra money 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 LCSW accountable for practice behavior. If there is an unfortunate outcome where the attorney general goes after a LCSW’s license and prosecutes for criminal allegations, the psychotherapist who is found guilty may find him or herself spending time in a jail cell.

REFERENCES

Abramson, M. (1996). Toward a more holistic understanding of ethics in social work

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

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.

Clinical Social Work Association. (2006). Code of Ethics. Arlington,VA:CSWA

Erikson, J., & Conidaris, M (2001). California Laws for Psychotherapists. LA: Legal Books Distributing.

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

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

Levy, C. (1982). Guide to ethical decisions and actions for social service administrators. Binghamton, NY: Haworth Press.

Loewenberg, F. M., & Dolgoff, R. (1992). Ethical issues for social work practice (4^th Ed.). Itasca, IL: F.E. Peacock.

National Association of Social Work. (1999). Code of Ethics. www.socialworkers.org/pubs/code/code.asp

Reamer, F. G. (1998). The Evolution of Social Work Ethics. Social Work, 43, 488-500.

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

LEARNING OBJECTIVES FOR SECTION B

• Define and explain the terms privacy, confidentiality and privilege
• Apply current ethics standards and standard of care for dangerous patients

INTRODUCTION TO PRIVACY, CONFIDENTIALITY & PRIVILEGE

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

Privacy “is the constitutional right of individuals to choose for themselves whether or when to reveal private information” (Bennett et al, 2006, p. 105). Confidentiality and privilege are distinct from privacy. Confidentiality is an ethics term that imposes a duty upon the therapist to keep information that has been disclosed in the therapeutic relationship in confidence. Embedded in privilege is the concept of law in which only the patient may give permission to release information in judicial proceedings. The therapist may release such information without patient permission in very limited circumstances.

Confidentiality is an ethical term that denotes a contract between the patient and the psychotherapist wherein the psychotherapist promises to keep all utterances confidential communications, except those disclosures required by law. It is a term seen in ethics codes and standard of care documents. It is considered an “ethics” term, rather than a “legal” term.

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

In general, privacy, privilege and confidentiality are benchmarks for psychotherapy and psychotherapy cannot progress successfully without them. Psychotherapy requires an atmosphere of confidence and trust where personal and intimate disclosures can take place without worry. This is why there are so many ethics codes (discussed later), laws of privileged communications, subpoenas and court orders to protect a patient’s disclosures.

”Holder of Privilege”- In most states, the patient holds privilege. This means that the patient makes the decision as to whom the psychotherapist may release testimony or records. In all but a few cases, only the patient makes this determination. There are exceptions to the holder of privilege such as child abuse, elder or dependent or vulnerable adult abuse, Tarasoff or dangerous to self or other.

Many states have laws to address special circumstances including when the patient is a minor, is incapacitated, or is unable to hold his or her own privilege:

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)

Exceptions to Confidentiality

Dr. Steven Behnke serves as the Director of the American Psychological Association’s Ethic’s Office and is also an attorney. He writes numerous books and articles and has an expertise in legal and ethical issues in psychological issues. Below is a list of exceptions to confidentiality Dr. Behnke discusses in one of his books. Please forgive the sections where there are direct quotes taken from his book where he addresses only psychologists rather than the general population of psychotherapists.

1. CLIENT CONSENT

“Confidentiality belongs to the client… a patient’s consent to release confidential information should be in writing” (Behnke et al, 1998, p. 33). In other words, when a client gives the therapist a “waiver” to release information to a third party, the therapist may do so for a limited time. Once the client removes permission or removes the waiver, client consent is over.

2. TREATMENT EMERGENCIES

“The disclosure of confidential information in an emergency is presumed to be the expression of a client’s wishes” (Behnke, 1998, p. 35). In this case, the psychotherapist may need to contact a family member to protect the patient. Certainly this overlaps with the next category “Public Safety” however, the therapist must make difficult decisions with regard to the safety of the patient, patient’s family, standard of care, and clinical judgment.

3. PUBLIC SAFETY

Allows the psychotherapist to prevent a patient from harming self or others. Sometimes this is a difficult decision that requires consultation and documentation as backup in decision making.

4. TREATMENT (CONSULTATION) Designed to facilitate the treatment process. The APA Code 4.05 Disclosures allows psychologists to disclose confidential information without patient consent in the course of clinical consultation “to obtain appropriate professional consultations” and to get consultations (APA 4.06 Consultations).

5. PROVISION OF MENTAL HEALTH SERVICES This exception ensures that patients will receive services “of an acceptable quality” (Behnke, 1998, p. 38).Additionally, the payment section of CMIA and LPS allow information to be “disclosed… to the extent necessary to allow responsibility for payment to be made (Civil Code 56.10(c)(2).

In general, when experts use the phrase “of an acceptable quality,” they are referring to the standard of care given the situation at hand.

6. THE LEGAL SYSTEM Because a court order is issued by a judge and a subpoena is issued by an attorney, the court order has more power and must be followed absolutely. With a court order, the judge may hold a hearing to determine which part, if any, of the record is to be entered as evidence. The judge determines what is privileged and what falls under the exception to privilege.

7. MANDATORY REPORTING STATUTES As discussed in number three above, an exception to confidentiality exists with regard to danger to self or others.

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 from Jane for the records. 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. She 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 the release of legal documents. Even though a subpoena does not have the power of a court order, it still must be attended to, and it 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; therefore, (c) could be a viable answer in some cases where there is no personal representative in the will of the deceased.

SOCIAL WORK ETHICS CODES THAT APPLY TO CONFIDENTIALITY

NASW Code of Ethics

Standard 1.07(a-r) – Privacy and Confidentiality

Since this is such a long code with eighteen sections, it is incumbent upon each individual social worker to take the time to review this standard him or herself. However, a brief summary is given below.

• SWs do not solicit information from clients unless they wish to disclose such information
• SWs need valid consent to disclose any private patient information
• SWs may breach in cases of danger to patient, others, etc.
• SWs should try to give informed consent regarding disclosures
• SWs should discuss limitations to confidentiality prior to treatment
• SWs are cognizant of the difficulties of confidentiality with multi-client situations (e.g. group, couple, family)
• SWs inform patients about disclosures to referring employers
• SWs do not disclose information to third party payers without permission
• SWs do not discuss confidential information in public places
• SWs protect confidential information in legal procedures
• SWs protect confidential information in media settings
• SWs are careful when using technology for record storage
• SWs are careful when using technology for record transmittal
• SWs dispose of records properly
• SWs take care to protect patient’s records in case of the therapist’s termination, incapacitation, or death
• SWs protect patient information in teaching or training lectures
• SWs do not disclose identifying patient information when receiving consultation
• SWs protect confidences of deceased patients

CSWA Code of Ethics

Standard III(b,c,e) – Confidentiality

(b) Mandatory reporting obligations may include, but are not limited to, the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); and any duty to report the misconduct or impairment of another professional.

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

(e) CSWs are cognizant of the hazards of technological changes and make reasonable attempts to maintain confidentiality when transmitting and receiving information via electronic means. Storing, transferring, and disposing of records is done properly and with the utmost respect to patient confidentiality.

INTRODUCTION TO DANGEROUSNESS

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

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

Most psychotherapists have heard of the obligation to protect third parties known as the “Tarasoff Ruling,” also known as the duty to warn and protect. This ruling has probably spawned more litigation than any other subject with regard to the therapist’s duty to protect (Stromberg et al., 1988).

In 1976, the California Supreme Court Justices made some important rulings that changed the responsibilities for all mental health professionals forever.

Prosinjit Podder, a young man from India, came to America to study engineering, after his family had proudly saved the money to send him to the University of California at Berkeley. He became the roommate of the brother of a young woman with whom he fell hopelessly and madly in love. Tatiana Tarasoff was a beautiful young woman of Russian descent who enjoyed folk dancing, going out with her friends, and being around boys. Her father was exceedingly strict, wanting her to remain close to home; he did, however, allow her to accompany her brother Alex to various folk dancing events, which is where she became acquainted with Mr. Podder.

Eventually, Prosinjit Podder became outraged and dissatisfied when Tatiana’s level of commitment to the relationship did not meet his own. Feeling as if he was being “driven crazy” and humiliated by Tatiana’s disinterest, Podder – after confessing his desire to his psychologist at Cowell Memorial Hospital outpatient clinic to cause Tatiana bodily harm – eventually stalked and murdered Ms. Tarasoff

In 1970, her parents sued all involved with the mental health facility. In an appellate decision (1974), the California Supreme Court Justices reaffirmed the 1974 decision in 1976, and case law was made.

Currently, all states have enacted some version of the original Tarasoff ruling that was codified in California’s Civil Code in 1985. The California Appellate court made a new interpretation of Tarasoff in 2004, which will be discussed later. For now, it is important to understand the original ruling by the Supreme Court Justices. Remember, however, that each social worker has the responsibility of discerning the Tarasoff statutes and case law in his or her own state.

(See Harmell, 1997, The Stab Felt Round the World: What you Need to Know about Tarasoff for a detailed review.)This famous Supreme Court case law ruling in California (1976) regarding the Tarasoff case was codified in 1985 as follows:

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 that 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

• What the justices meant by “a moment’s reflection” was that the therapist should consider who the patient has been discussing in recent sessions. Has the person been mentioned with any animosity or threats? Can the therapist determine whom the victim is by evaluating negative statements made about a potential victim?

Continuing, the Supreme Court Justices then dictated what is to be done once the threat reaches the threshold of the three requirements stated above. The psychotherapist should do the following:

Warn potential victim(s)

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

Notify authorities

• This generally means the police, sheriff, Child Welfare Authorities, 911, or other emergency services

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 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 (Up until recently, Tarasoff dictated that 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, and you would instruct the caller how to proceed to help save the life of the fry cook (e.g., 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.

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 upon being permitted to enter an eating disorders inpatient program at Northridge Hospital after gaining weight due to Prolixin injections. She was given injections rather than oral medication because she was severely suicidal and had overdosed on her oral meds in the past, tried to hang herself, and enlisted other methods of attempting suicide.

Her physician at USC, Dr. Allen, forbade her entrance to the program, telling her she was inappropriate for it due to her suicidal ideation and constant and serious attempts to take her own life. When she went to the director of the eating disorders program, Dr. Gross, in an attempt to enter the program despite her psychiatrist’s protestations, he contacted the Allen. Allen, in spite of his extreme objection to the woman’s appropriateness for the eating disorders program, then failed to inform Gross of the woman’s severe suicidal behavior. The woman was admitted as an inpatient in the eating disorders program.

Unfortunately, the young woman sneaked in Prolixin tabs that she had been hoarding, and quickly overdosed (her mother failed to confiscate the oral Prolixin before admission). After 5 weeks in a coma, she was left with permanent brain damage. The mother sued Northridge, which cross-sued USC. Mother won settlement awards from both USC physicians and Northridge physicians.

This California appellate decision included a duty to communicate serious threats of known dangers to the patient’s subsequent caregivers when the patient is seriously dangerous to self.

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

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

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

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

It appeared that all three requirements of Tarasoff were met:

1. Communicated Directly by Patient to Therapist

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

2. Serious Threat of Physical Harm that was Imminent

Consistent drug use throughout the treatment with Greenson

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

Tammy Bellah, the patient herself

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

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

In other words, in Meyer’s (1997) re-analysis of the Bellah decision, it seems the actual reason Tarasoff was not extended to suicide in the Bellah case is because the statute of limitations had run out to file a case, not because the court decided in its deliberations not to extend the Tarasoff decision to suicide. Thus, extending Tarasoff to suicidality has not been formally tried in a court setting, with the exception of Gross v. Allen.

What does this mean to LCSWs? If Meyer is indeed correct that Bellah did not extend Tarasoff to suicide only due to a legal technicality, we are left with a good deal of uncertainty. Well-trained psychotherapists have always handled suicidal patients with proper care, yet not the same care as Tarasoff situations As of now, the safest approach is to consult with one’s insurance carrier’s legal department and/or one’s personal professional attorney, then document the consultation.

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

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 – May be Coming to Your Town, Too

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 that has recently become precedent in California.

The Facts

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

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

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

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

The Trial

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

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

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

The Ewings’ Appeal

The Ewings make two primary points in their appeal:

1. The trial court’s construction of the law 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 the law.

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

The Appellate Decision July 15, 2004

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

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

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

Conclusion

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

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

In reality, psychotherapists are required to protect the public and the patient from harm. This requires taking steps to prevent harm from occurring such as those mentioned previously. If a family member or “reliable other” deemed to be a person who is trying to advance the patient’s therapy, then the therapist must consider this a Tarasoff situation as follows:

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; he eventually acted upon this by shooting her while she sat in her car, shielding her 3-year old son from the bullet.

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

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

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

In sum, it seems that, in states where damage to property can be included in the Tarasoff mandate, the use of arson in an attempt to damage property could be considered a Tarasoff mandate given the Peck ruling of 1983.

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

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

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

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

Difference Between Tarasoff, Homicide, and Suicide

Tarasoff / Ewing

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

Homicide

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

Suicide

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

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

• Tarasoff / Ewing
• Child Abuse
• Gravely 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 for review of answer material below.

Question 5

Joe tells you he is going to kill his brother on New Year’s Eve with a gun from his collection. 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 the brother is identifiable. New Year’s Eve is not imminent danger.

ASSESSMENTS FOR VIOLENCE & SUICIDE

Assessment for Violence, Dangerousness, or Tarasoff

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

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

Assessment for Suicide (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). Juhnke has adapted the original SAD PERSONS for use with children and adolescents (Juhnke, 1996).

The SAD PERSONS Suicide Assessment for Risk Model suggests:

Sex

Once again, these authors, in their research, found male patients 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.

Age

This important element was once given a value that it is not given today based on the zeitgeist of the particular time. 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.

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.

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.

Ethanol Abuse

Interestingly, in 1983, the authors wanted to make the initials work, so 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.

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…”

Support System Loss

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

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.

No Significant Other

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

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 on that answer, and so on. Then use the scoring chart below in decision-making, and consult and document as usual.

Chart for Scoring Suicidal Patients

Question 7

Vignette – Danny

Danny is a 28-year-old man whom 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 work. It seems he has given many of his possessions away because he is “paring down my things” 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 later that day in the basement of his house, 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.

SAD PERSONS FOR CHILDREN AND ADOLESCENT - SCORING SYSTEM

The SPS (Patterson et al. 1983) was revised to assess the immediate suicide risk of adolescents and teens and to provide the evaluator with suggested interventions.

The Adapted-SAD PERSONS Scale (A-SPS) was therefore designed to be used by counselors working with children and youth and is an adaptation of the original SPS. Unlike the SPS, the adapted scale encourages a prompt and thorough child suicide risk factor assessment and gives suggested intervention guidelines for school counselors (Junke, 1996, p. 252).

The ASPS is an atheoretical scale used to assess immediate suicide risk factors and to provide general recommendations about interventions for those concerned about young person’s well being. It uses the acronym SAD PERSONS taken from Patterson et al’s suicide assessment which is founded on the twin literature, using suicide risk factors identified in the research.

S….Sex

Once again, research suggested that male patients are more likely to act out dangerously to self and others.

A….Age

Older adolescents seem to have significantly higher rates of suicide than do elementary school children (Hoberman & Garfinkel, 1988). Older adolescents are able to use more sophisticated and lethal methods and have greater access to such means. Students fifteen-years-old and older should be considered at greater risk.

D….Depression

There is a high correlation between suicide and clinical depression, according to Maris (1991).

P….Prior History

As with assessment for violence, risk increases when there are previous suicide attempts.

E….Ethanol Abuse

Many researchers have found a high correlation between alcohol or drug use and suicide. (Hoberman & Garfinkel (1988) reported approximately 28% of child and adolescent suicides had consumed alcohol within twelve hours before their suicide.

R….Rational Thinking Loss

Potential psychosis: “A voice told me to kill myself…”

S….Support System Loss

Isolation and impaired interpersonal contacts correlate with teen suicide.

O….Organized Plan

As with violence assessment, this speaks for itself.

N….Negligent Parenting (children or adolescents)

Significant family stressors, parental loss, abuse, neglect, family disruptions

S….School Problems (children or adolescents)

Being teased or hounded by other kids; taunting, ridicule, disciplinary problems; deterioration of academic performance

GUIDELINES FOR CLINICAL INTERVENTION

The following are Junke’s (1996) guidelines for interventions given the potential score received after conducting the ASPS. These are merely guidelines and to be used given each practitioner’s clinical judgment on a case-by-case basis. Each client is a new and specific situation with mitigating circumstances to be taken into consideration. For more detailed information and further guidance, please see Junke’s original article.

TOTAL SCORE RANGE = 0 to 100

Clinician scores each risk factor between 0 and 10

0 = Complete Absence of Risk
10 = Significant Manifestation of Risk

Gender (Sex), being such a significant factor, is scored:

Male = 10 points
Female = 0 points

Additional Risk Factors

Students presenting with even ONE of the following risk factors for suicide warrant counseling, according to Junke, 1996:

1. Depression or affective disorder
2. Ethanol or drug abuse
3. Rational thinking loss
4. Organized suicide plan

Students reporting organized suicide plans or having rational thinking loss warrant immediate intervention and must be monitored. Those who are clinically depressed and deemed to be using drugs must be given appropriate counseling services (Junke, 1996). Suicide is a real danger, which undoubtedly, the ASPS will not always identify. Clinicians must be ever alert to any and all signs of suicidality in both adults and minors and continue to consult and document appropriately.

REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

LEARNING OBJECTIVES FOR SECTION C

• Maintain records properly
• Discuss updates about HIPAA and patient records

SOCIAL WORK CODES THAT APPLY TO INFORMED CONSENT

NASW Code of Ethics

Standard 1.03(a-f) – Informed Consent

(a) SWs should use clear and concise language that can be understood by the patient. The patient should be told about the purpose of the services, risks related to the services, limits to the services, problems with third-party payers, problems with costs of treatment, reasonable alternative treatment options, and the fact that treatment is purely voluntary for the patient.

(b) When patients are not literate or have difficulty understanding the primary language used in the practice setting, the SW takes steps to ensure comprehension. Arranging for a qualified translator or interpreter whenever possible, without breaching confidentiality, is an option.

(c) When the patient is unable to give consent, the SW seeks permission from an appropriate third party without breaching confidentiality.

(d) When the patient is not receiving services voluntarily, the SW gives as much information as possible.

(e) SWs who give services over the Internet must inform recipients of the limitations and risks.

(f) SWs must obtain patients’ informed consents prior to audiotaping or videotaping clients or permitting observation of services to patients by a third party.

SOCIAL WORK CODES THAT APPLY TO INFORMED CONSENT

CSWA Code of Ethics

Standard II – Responsibility to Clients

1. Informed Consent (a-b)

(a) Clinical social work takes place within a context of informed consent. Patients must be informed of the extent and nature of the services being offered, the mutual limits of service, rights, opportunities, and obligations associated with the provision of and payment for those services.

In order for consent to be valid, it must be informed clearly, must be chosen freely, and without undue influence, and the patient must have the capacity to give consent freely. The language of the consent form or verbal formal must be given in a way that is understandable to the person receiving the information.

(b) CSWs have a duty to be aware of the impact and potential impact of all third-party payment arrangements and the CSW must discuss these fully with the patient along with alternative treatment options.

PATIENT RECORD-KEEPING GUIDELINES

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

Other purposes include review of the delivery of services, self-monitoring, documentation of what is working, and progress toward treatment goals. In essence, properly kept records enhance the treatment and protect the psychotherapist from litigation and spurious ethics and licensing allegations. Practitioners who do not maintain adequate patient records put themselves in ethical and legal peril (Schaffer, 1997). Keeping records is the best form of liability insurance (Corey, Corey, & Callanan, 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 HIPAA (Benitz & Jensen, 2004; 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, telephone numbers, relationship status, cultural issues
• Primary care physician – or document why there is none
• Objective finding from most recent physical if possible
• Progress of treatment
• Type of service – individual, group, couple, family, child; theoretical orientation being used at various stages of treatment; possible crisis intervention
• Dates of service
• Intake information
• Mental status exam
• Signed informed consent – good for the length of the treatment unless office policies change
• Referrals to other service providers
• Releases of information forms – good for 12 months unless the patient changes his or her mind
• Significant actions taken – “red flag” issues and how handled, danger to self or other, abuse issues, substance abuse, etc.
• Diagnosis – using current DSM terminology for insurance purposes; if records are to be public in any way (court proceedings), take special care here)
• Fee and insurance information
• Consent for treatment form – signed by patient
• Chart notes – see below for further discussion

How Long Should Patient Records be Retained?

When your state fails to provide a statute that dictates how long patient records must be retained in private practice, American Psychological Association experts suggest psychologists should follow the Specialty Guidelines for the Delivery of Services (1981) (Caudill & Pope, 1995; Stromberg et al., 1988; Bennett, 1990). LCSW’s may also wish to follow these guidelines:

Specialty Guidelines for Delivery of Services:

2.3.4 Each clinical psychological service unit follows an established record retention and disposition policy.

Interpretation:

1. Full records be retained intact for three years after completion of services or last date of contact
2. Full records or summary be maintained for an additional 12 years
3. Records may be disposed of no sooner than 15 years

In other words, in states where there are statutes for clinic, hospital and private practice record-keeping, psychologists are responsible for following such laws. Where no state laws for record keeping exist, psychologists are to follow the Specialty Guidelines for Delivery of Services of 1981, despite their advanced age!

NOTE: States are in the process of updating laws of private practice record retention.

Chart Notes

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

Stromberg et al. (1988) take a very strong stance in this area. They note many psychotherapists are under the false belief that “process” notes are private and the property of the psychotherapist. This could not be more untrue according to these attorneys (Stromberg et al. (1988). The California Association of Marriage and Family Therapist (CAMFT) Workshop Legal & Ethical Issues: Best Practices material goes so far as to take the stand "It is unprofessional conduct to fail to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered" (Benitez & Jensen, 2004, p. 169). However, in the terminology, “progress” and “process” notes are considered different. HIPAA now refers to “process” notes as “psychotherapy” notes.

Question 4

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 patient’s privacy the most adequately and completely. Psychotherapists are required to study both federal and state laws that are applicable and decide which ones supersede the others. Fortunately, many available courses do this work for clinicians.

Electronic transmission refers to computer transmission of information and computer faxes, not telephone lines or freestanding fax machines. If you receive or send patient information via your computer – by a computer, fax, or email – you are required, under federal law, to be HIPAA compliant. If you use telephone lines verbally, freestanding faxes, or snail mail for transmission of patient information, you are not required to be HIPAA compliant. However, if you use any billing service that does any such transactions via computer lines or computer faxes, then you are required to make your office HIPAA compliant even if you personally do not transmit information via the electronic methods included in HIPAA. Additionally, you are required to have a contract with the billing agent guaranteeing he or she is, indeed, following HIPAA guidelines on your behalf.

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

Question 4

HIPAA refers to a group of federal laws that supersede state laws except when:

1. State laws are less protective of patient’s confidentiality
2. State laws never supersede federal laws
3. State laws are more protective of patient’s confidentiality

NOTE: See Section – HIPAA for review of answer material below.

As mentioned earlier, HIPAA are federal laws that nearly always supersede state laws. The exception is when state law gives more protection to the patient’s confidentiality rights. Thus, (c) is the best answer here.

PATIENT ACCESS TO RECORDS AND RECORD RETENTION

See if your state laws and HIPAA federal laws agree on patients having access to their own health records. Once an LCSW has been given written notice, and 1) the LCSW has reasonably discussed the purpose of the records request, and 2) the LCSW believes that – if the request is fulfilled – there will be no harm to the patient, the following must be followed:

In California, the psychotherapist “owns” the actual file, but the information in the file is the property of the patient (Benitz & Jensen, 2004; Caudill & Pope, 1994; Bennett, 1990). Therefore, the patient may view or have a copy or summary of his or her records at the time of his or her choosing. Many states do allow for the possibility of denial of access to the records if the psychotherapist can document good reasons why it would be destructive to the patient to view or have a copy of records. However, the patient still has the right to appoint another mental health professional to receive the records on the patient’s behalf. The therapist in receipt of records may discuss the records with the patient, but may not actually give or show them to the patient.

Summary of Records

A summary of records is an option that is often suggested by the psychotherapist versus copying the entire file. This may or may not be acceptable in court proceedings, depending upon the judge’s pleasure. The elements of a summary of records are enumerated by Benitz & Jensen (2004) as well as Canter et al. (1994):

• Chief complaint and history of complaint
• Consultation received
• Referrals made during the course of treatment (e.g., medication, anger management, couple counseling)
• Diagnoses being treated
• Treatment plan
• Medications and evaluations for medications
• Objective findings from most recent physical if possible
• Progress made in treatment
• Psychological assessment results
• Termination notes, if applicable

SOCIAL WORK ETHICS CODES THAT APPLY TO RECORD KEEPING

NASW Code of Ethics

Standard 1.08 (AB) – Access to Records

(a) Social workers provide patients with reasonable access to their records. If social workers are worried that access to records might harm a patient or the patient might be caused serious misunderstanding by being given access to the record, the social worker provides assistance and consultation in interpreting the record. Social workers only limit access to records by patients under extremely limited circumstances when there is compelling evidence such access would cause serious patient problems.

(b) When providing access to records to patients, social workers always protect confidentiality of every other person mentioned in the record.

Standard 3.04 (ad) – Client Records

(a) Social workers document patient information accurately and honestly.

(b) Social workers document patient information in enough detail to ensure continuity of services in delivery of services in the future.

(c) Documentation should protect patient privacy to the greatest extent possible.

(d) Records should be maintained for the number of years required by state laws following termination of services.

CSWA Code of Ethics

Standard II – Responsibility to Clients

2. Practice Management (d-e)

(d) CSWs keep records for families and each individual they treat in accordance with relevant administrative rules and contractual obligations and state and federal laws.

(e) Requirements of the ethics code apply to all media such as electronic and written records.

CSWs establish a policy for retention of records and disposal of records, and communicate this to patients. In the case of the therapist’s death or incapacity, the CSW should have a plan or procedure for proper handling of patient records that protects patient privacy and is in accordance with state law.

The idea here is to:

• Facilitate provision of services later, if needed to the client by other professionals
• To allow for replication of research
• To aid in accuracy of billing
• To ensure compliance with law
• To properly store records in databases
• To ensure that records, insurance information, and billing are prepared accurately and appropriately. The idea here is to avoid billing for a false diagnosis (e.g., Axis I: 296 Major Depressive Disorder) that is commonly and universally paid for by the insurance company rather than what is actually being treated (V61.1 Partner Relational Problem), which may not be covered by insurance because a V-code is “a condition, not a mental disorder.” This is insurance fraud, and a severe license and ethics violation.

Question 5

According to the APA Specialty Guidelines, how long must private practice records be retained?

1. A total of 15 years
2. A total of 7 years in private practice settings

NOTE: See Section C – Record Retention for review of answer material below.

Don’t forget that when there are no laws that dictate how long private practice patient records must be kept the APA Specialty Guidelines for Delivery of Services lend some guidelines to follow. Thus, the best answer to Question 5 is (a).

REFERENCES

APA. (1981). Specialty Guidelines for the Delivery of Services. Washington, DC: Author.

American Psychological Association. (1994). APA’s New Record Keeping Guidelines. Monitor, 89, 984-986.

Benitz, B., & Jensen, D. (2004). The California Association of Marriage and Family Therapist Workshop Legal & Ethical Issues: Best Practices. San Diego: CAMFT.

Bennett, B., Bryant, B., VandenBos, G., & Greenwood, A. (1990). Professional Liability and Risk Management. Washington, DC: APA.

Berner, M. (1998). Informed consent. In L. Lifson & R. Simon (Eds.), The Mental Health Practitioner and the Law (pp. 23-43). Cambridge, Mass: Harvard University Press.

Campbell, C., & Gordon, M. (2003). Acknowledging the inevitable: Understanding multiple relationships in rural practice. Professional Psychology: Research & Practice, 34, 430-434.

Canter, M., Bennett, B., Jones, S., & Nagy, T. (1994). Ethics for psychologists: A commentary on the APA ethics code. Washington, DC: APA

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

Corey, G., Corey, M., & Callanan, P. (1998). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.

Epstein, R., & Simon, R. (1990). The exploitation index: an early warning indicator of boundary violations in psychotherapy, Bulletin of the Menninger Clinic, 54, 450-465.

Epstein, R., Simon, R., & Kay, G. (1992). Assessing boundary violations in psychotherapy: Survey results with the exploitation index. Bulletin of the Menninger Clinic, 56, 150-166.

Erikson, S. (2001). Multiple relationships in rural counseling. The Family Journal: Counseling and Therapy for Couples and Families, 9, 302-304.

Guralnik, D.B. (Ed.) (1983). Webster’s New World Dictionary. NY: Warner

Guthiel, T. (1980). Paranoia and progress notes: A guide to forensically informed progress notes. Hospital and community Psychiatry, 31,479-482.

Harmell, P.H. (2000, May-June). Clarification of record keeping in private practice settings. The Los Angeles Psychologist.

Harmell, P.H. (1997, May-June). The current law on patient access to health records. The Los Angeles Psychologist.

Johnson, S. (1997). Therapist’s Guide to Clinical Intervention. London: Academic Press.

Jongsma, A. (2001). The Adult Psychotherapy Progress Notes Planner. NY: Wiley

Pelchat, Z. (May/June, 2001). The standard of care: Definitions and examples. The California Therapist. San Diego: CAMFT.

Schafer, S. (1997). Don’t be aloof about record-keeping; it may be your best liability coverage. The National Psychologist, 6, 21.

Shapiro, E. & Ginzberg, R. (2003). To accept or not to accept: Referrals and the maintenance of boundaries. Professional Psychology: Research & Practice, 34, 258-263.

Shapiro, E. & Ginzberg, R. (2002). Parting gifts: Termination rituals in group therapy. International Journal of Group Psychotherapy, 52, 319-336.

Shapiro, E. & Ginzberg, R. (2001). The persistently neglected sibling dynamics and its applicability to group therapy. International Journal of Group Therapy, 51, 327-341.

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

Thompson, A. (1990). Ethical Practices in Psychotherapy. NY: Wiley.

www.apa.org (HIPAA compliance instruction).

LEARNING OBJECTIVES FOR SECTION D

• Utilize ethical billing practices
• Take steps to prevent insurance fraud
• Explain when and how to get a professional consultation

FEES AND FINANCIAL ARRANGEMENTS

Finances are difficult for most clinicians who would much rather be doing clinical work than discussing how much they are going to charge per session hour. Often the collection of fees takes a back seat to clinical considerations. However, most clinicians rely upon practice income to pay current living expenses, so regular collection of fees is mandatory.

Stromberg et al. (1988) suggest several basic principles to maximize effective billing and collection whether or not the client is utilizing an HMO or PPO insurance:

• Inform the patient at the outset what the fees are and when they will be collected from the patient (e.g., each session, monthly)
• Wherever possible, require payment at the time of each session
• Maintain careful accounting records so money does not “slip through the cracks”
• Render statements to patients in a timely manner
• Issue appropriate reminders regarding unpaid bills
• Openly discuss with patients possible resolution of payment problems prior to accounts becoming overdue

During a first evaluation, financial considerations should be discussed and a permanent fee should be set. Many psychotherapists customarily raise their fee annually along with either the cost of living or the increase in their rent. Whatever the case, this must be discussed in advance so the patient can consider this in entering long-term treatment. Most clinicians include these issues on the informed consent form or at the intake at the outset of treatment.

Unconscious Fiscal Convenience

Welfel (2002) discusses the term “unconscious fiscal convenience,” introduced by Cummings in 1995. The meaning of this term is the overlooking of important therapeutic dimensions of the sessions because the issues would conflict with the psychotherapist’s financial self-interest. In other words, avoiding risky topics that may stimulate the patient to become annoyed, upset, or wish to leave therapy prematurely. Welfel asserts such clinicians are not malicious in any way, but fail to see their unconscious underlying financial motives. It may be a way of self-preservation or financial survival.

To avoid such practices, psychotherapists should pursue continued peer consultation along with continued consultation with decision-making methods designed for use especially when one’s financial well-being is at stake.

A risk in private practice is the conflict of interest inherent in the need to collect the highest fees possible along with the ethical dictate to provide pro bono and sliding fee services (see below for relevant Social Work Standards).

Psychotherapists have all the same financial pressures as