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“Marriage is a wonderful institution, but who wants to live in an institution?”
This is a beginning to intermediate level course. Upon completion of this course, mental health professionals will be able to:
Authors’ Note: With very few exceptions, all scenarios presented as case vignettes in this course are adapted from actual incidents. We use improbable names throughout to ensure that the identities of all parties are not discernible; It is not our intent to trivialize the seriousness of the issues. As part of our disguising process, we also randomly assign various professional designations and earned degrees or licensure status. Also, for ease of presentation, we use the terms “therapist” or “mental health professional” throughout to refer to anyone delivering psychotherapy or counseling services to clients.
The materials in this course are based on current published ethical standards and the most accurate information available to the authors at the time of writing. Many ethical challenges arise on the basis of highly variable and unpredictable contextual factors. This course material will equip mental health professionals to gain a basic understanding of core ethical principles and standards related to the topics discussed and to ethical decision-making in general, but cannot cover every possible circumstance. We advise consultation with knowledgeable colleagues and/or professional association ethics committees when in doubt.
At the simplest level, when we have more than one person in the room, our professional obligations as psychotherapists becomes much more complex than when treating individuals. Group therapy typically describes the situation when three or more people with no kinship ties or personal commitments to each other participate in a shared treatment experience.
Family therapy – sometimes referred to as couple and family therapy, marriage and family therapy, family systems therapy, and family counseling - involves two or more people with personal commitment and/or kinship ties. A key ethical challenge in any treatment involving more than one client flows from the nature of the therapist’s non-exclusive obligations to more than one person. Consider the following complications.
Couples and families typically include:
people with non-congruent, competing, or conflicting interests;
people with different histories, coping skills, expectations, and ability levels;
people who wish to keep secrets from each other;
people who do not want to be totally candid with each other; and
people with differing levels of decisional capacity and dependence.
Imagine the following questions asked of one’s partner or close family member:
Do I look fat in this?
Aren’t my parents wonderful?
Which one of us is your favorite (most talented, smartest, best looking) child?
I’m right, aren’t I?
Are you sleeping?
Do you love me more than (as much as)…?
Family members often ask each other questions that seem to seek candid appraisal, when they actually hope for emotional support, rather than blunt candor. The best answer will vary widely across contexts and relationships, but rarely involves total frankness.
This course will parse out those ethical nuances across the fundamentals of professional ethics codes. Throughout the course, we will address the four current ethics codes of major national organizations whose members provide couple and family therapy. These include: the American Association of Marriage and Family Counseling (AAMFT), the American Counseling Association (ACA), the American Psychological Association (APA) and the National Association of Social Workers (NASW). When referring to the enforceable standards of these association codes, we use the parenthetical notation followed by the numerical location to identify the relevant ethical standard (e.g., APA: 3.1, refers to the APA’s section 3.1). Whenever we have not referenced an organization’s code relative to a particular point, readers should not infer that the issue is considered unimportant. Codes differ in lengths and specificity, and the overarching themes in every code are integrity and competence, even if every facet of these ethical mandates are not further delineated. We hope our code-referencing scheme will make it easy to look up the exact wording of the codes, all of which are readily available online.
The APA ethics code is not the sole publication related to ethical matters within the APA, though it is the only enforceable document. A number of guidelines for practitioners provide additional assistance in maintaining high standards of care. Examples include:
Guidelines for Prevention Psychology;
Guidelines for the Practice of Telepsychology;
Specialty Guidelines for Forensic Psychology;
Record Keeping Guidelines;
Guidelines for Psychological Practice with Older Adults;
Guidelines on Multicultural Education, Training, Research, Practice and Organizational Change for Psychologists; and
Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual Clients.
APA guidelines are created and updated as deemed necessary, and all are available online.
Readers may wonder why we focus relatively less on psychiatry, as opposed to the other mental health professions. Many commentators have noted a general decline in the frequency of psychiatrists practicing as psychotherapists (Gabbard, 2005; Koocher, 2007; Sharfstein, 2006), and this is particularly true with respect to family therapy – an area in which they typically have little or no training. The American Psychiatric Association’s Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry uses the word family chiefly with reference to the relatives of an incompetent individual or child client (Section 5.5) and does not use the word “couple” at all in its document, which can be found online at www.psychiatry.org.
As we proceed, we will encounter many situations in which clear answers about the ideal ethical resolution will remain elusive. We will encounter gray or questionable areas where ethical codes do little to help us address specific challenging contextual issues. In such circumstances, obtaining consultation from an experienced professional colleague, from an attorney knowledgeable about laws in your jurisdiction, or from one’s professional association may prove useful. Documenting the steps you have followed and your rationale for any decisions made will also help to show that you engaged in a thoughtful, deliberate approach should problems later arise.
We consider a family in its simplest form to consist of two adults who have forged some type of mutual commitment. This dyad may or may not have legal recognition as a marriage, but the parties have agreed to some degree of obligation and loyalty to each other. The depth and meaning of the commitment and how it manifests itself vary widely as a function of social, cultural, and religious values. As we discuss such relationships, we will refer to the unit as a couple. The nuclear family refers to a parent or couple and their dependent children. Often treatment may involve more complex relationships involving other relatives who generally reside in the same household. In some instances, therapists choose to bring in extended family members such as grandparents to address particular concerns.
Legal recognition of family status comes up as an issue in treatment under many different circumstances. In general, a child born to a woman who is married to a man will be legally presumed to be the child of both. This legal presumption may not hold if the heterosexual couple is unmarried, or if the husband legally contests paternity. The law with respect to gay marriage and associated family rights continues to evolve rapidly across state jurisdictions despite the Supreme Court ruling in Obergefell v. Hodges (2015). For example, if two married women bear children via artificial insemination, each child may be considered the biological child of the birth mother, but may be considered to have no legal relationship with the biological mother’s spouse. As of this writing, no state routinely permits both members of an unmarried same-sex couple to be listed on a baby’s birth certificate. In such situations, a second-parent adoption process might be necessary to secure parental rights for both women.
Following divorce, parents may have sole legal responsibility, shared legal responsibility, or no legal responsibility for their child as the result of a judicial ruling. Responsibility for a disabled child who has attained the age of majority or a disabled adult family member may require a legal declaration of incapacity and appointment of a guardian. In some case vignettes, as described later in this course, minor children can have themselves declared legally independent of their parent(s). In other instances, children may have the right to seek health care (including psychotherapy) without their parents’ consent.
For all of these reasons, therapists who work with children or incompetent adults will need to have a good understanding of the relevant laws in their jurisdictions and the legal status of their clients. As we shall detail, clarification of the legal status of clients and the authority of those consenting to treatment becomes particularly important in any situation other than that of a marital dyad bringing their own biological or legally adopted children into family therapy. In other contexts, the therapist will want to document good faith efforts to assure adequate consent or authorized permission for treatment by those with legal authority.
It may seem obvious to note that many families include children, and children differ from adults in many ways that raise special ethical considerations when they fold into the treatment mix. These include their legal status as minors, socialization influences, cognitive abilities, physical development, and financial dependence.
The concept of a legal minor had its origins in property and protective rights by controlling the age at which children could be held legally (and financially) liable. Minor status precludes signing contracts, drinking alcoholic beverages, voting, marriage and other adult prerogatives. The age range can vary from 18 to 21 across jurisdictions, and certain lower age thresholds are recognized for some activities (e.g., age of consent to sexual activity or minimum age for driving). International standards vary widely, and therapists should take that into consideration when encountering immigrant or refugee families. The legal requirements in the jurisdiction wherein the treatment takes place will apply, requiring that the therapist remains mindful of standards and educates families to nuances that may affect treatment.
In some instances, underage children can seek a court declaration of emancipation or mature minor status in order to exercise responsibilities independently. One such highly publicized case involved a world-champion gymnast.
At the age of 15, Dominique Moceanu was a member the “Magnificent Seven,” the 1996 Olympic gold-medal-winning United States women’s gymnastics team. Two years later, at age 17, she left home and sought legal emancipation from her parents in order to regain control over money she had earned as a professional gymnast. In court and television interviews, she stated that her abusive and controlling father had squandered her considerable earnings. The court approved her petition for emancipation and control of her finances (Longman, 1998; Moceanu, 2012).
Socialization influences, cognitive decision-making, and limitations in future-oriented reasoning can also play an important role in compromising the ability of a child to make fully independent decisions. Consider the challenging case of Ricky Ricardo Green.
At age 15, Ricky Ricardo Green, the child of separated parents, Nathaniel and Ruth Green, lived with his mother. Ricky had two attacks of poliomyelitis, resulting residual weakness of all four extremities and trunk muscles, severe obesity, and paralytic scoliosis secondary to muscle paralysis (a curvature of the spine). As a result of these progressively worsening conditions, he had become bedridden and could not stand or walk because of spinal collapse. His physicians agreed that if Ricky’s physical ailments were not repaired with surgery, he would deteriorate, ultimately becoming a complete invalid. Proposed surgery was the only way to secure some chance of a normal life. However, a blood transfusion of donated or Ricky’s own banked blood would be necessary. Ricky’s mother adhered to the Jehovah’s Witness faith. She had no objection to the surgery itself, but strongly believed that religious principles prohibit any blood transfusions. The hospital petitioned to have the mother declared neglectful and a guardian appointed to authorize surgery. The trial judge interviewed Ricky about his preferences. At one point Ricky replied, “I guess my Mom knows what’s best.” Hearing Ricky’s testimony as an informed preference, the judge declined to overrule the mother’s decision.
On the one hand, Ricky had voiced a preference. On the other hand, he clearly remained very physically and emotionally dependent on his mother. How independent was his decision? If he accepted a blood transfusion, he would be deemed to have removed himself from the religious community of Jehovah’s Witnesses and would not be viewed as a fellow Witness. What would this have meant to his relationship with his mother? Was his preference an independent decision by a competent adult or too heavily influenced by his dependent status and intense relationship to his mother? We will never know. By the time the case reached the Pennsylvania Supreme Court, Ricky was 17. By a four-to-three vote, the court ruled against the surgery, citing Ricky’s antagonism to the operation and the need for his cooperation for treatment. Ricky was described by the court majority as “an intelligent child of sufficient maturity” in making the decision (Green Appeal, 1972).
Given the Moceanu and Green cases, how should we conceptualize parental decision-making with respect to mental health treatment decision-making? After all, most children who come to our offices as individual or family therapy patients are there because some adults have decided that their children need help. Some children, particularly adolescents, may state firm objections to participating in mental health services. In order to understand how the legal system views parental authority and the treatment of children we can get general guidance from four U. S. Supreme Court decisions dating from the early to mid-20th Century.
On May 25, 1920, Robert T. Meyer, was teaching at the Zion Parochial School, a one-room schoolhouse administered by a Lutheran congregation in Hampton, Nebraska. As he helped 10-year-old Raymond Parpart, a fourth-grader, read bible stories in German, the Hamilton County Attorney entered the classroom. He must have suspected such goings on because many Lutheran schools were using German in their liturgy. He charged Meyer with violating Nebraska’s Siman Act. Meyer was found guilty and fined $25 (approximately $275 in today’s dollars).
In the years following World War I, all things German had become anathema in mainstream American life. Immigrants, particularly those whose first language was German, were viewed as dangerous. Much as we see today, some politicians with anti-immigration sentiments used post-war public sentiment to advance their interests. Language became the prime focus of legislation at the state and local level. Some states enacted bans on all foreign language instruction, while a few banned only German. In 1919, Nebraska had passed “An act relating to the teaching of foreign languages in the state of Nebraska,” locally known as the Siman Act. This law restricted the use of a foreign language as both a medium of instruction and as a subject of study. In particular, it provided that, “No person, individually or as a teacher, shall, in any private, denominational, parochial, or public school, teach any subject to any person in any language other than the English language.” Foreign language instruction was prohibited prior to the eighth grade, regardless of family preferences.
Meyer appealed to the Supreme Court. In his decision, Justice McReynolds stated that the Due Process clause of the Constitution, “[w]ithout doubt…denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience…” (Meyer v. Nebraska, 1923). In that context, the rights of parents to make determinations relevant to their children’s education became clearly established.
The national trend evidenced in Vignette 3 extended well beyond Nebraska. On November 7, 1922, the voters of Oregon passed an initiative amending Oregon Compulsory Education Act based on a citizens’ initiative aimed at eliminating private and parochial schools, including Catholic schools. The political goal seemed to focus on addressing the foreign values of immigrants through mandatory public school education. The Society of the Sisters of the Holy Names of Jesus and Mary, which operated a parochial school in Portland, sued the governor (Walter Pierce) and others to block the law.
Close on the heels of the Meyer decision, Justice McReynolds, backed by a unanimous Supreme Court, ruled that children are not “mere creature[s] of the state.” The Court held that the Fourteenth Amendment prevented the state from forcing parents to accept instruction for their children only from public schools (Pierce v. Society of Sisters, 1925). These decisions clearly established a kind of right of control by parents over their children. Two decades later, another Supreme Court case helped to frame the limits of that control in the context of child welfare.
Nine-year-old Betty Simmons went out with her aunt, Sarah Prince, on the streets of Brockton, Massachusetts on the evening of December 18, 1941, to preach and distribute copies of publications entitled Watchtower and Consolation in exchange for contributions. Both were ministers of the Jehovah’s Witness faith. The state’s child labor laws prohibited boys under age 12 and girls under age 18 from selling literature or other goods on public thoroughfares. A police officer intervened and Ms. Prince was prosecuted for refusing to disclose Betty’s identity and age, providing the material for Betty to sell, and allowing Betty to work in violation of the law. Ms. Prince argued that the child labor laws violated her Fourteenth Amendment rights to exercise her religion and her equal protection rights because Betty was a minister (Prince v. Massachusetts, 1944).
In a 5-to-4 decision, the Supreme Court ruled against Ms. Prince, focusing on parental decision-making authority in the context of children’s well-being. This decision has become a legal classic, cited whenever parental authority seems in question. The Court held that the government has broad authority to regulate the treatment and welfare of children, noting that parental authority is not absolute. In particular, the courts may restrict some parental preferences in the interest of a child’s welfare. The majority opinion, written by Justice Wiley Blount Rutledge, features the oft-quoted line, “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” (Prince v. Massachusetts, 1944).
J.R. and other minor children had long been voluntarily admitted to psychiatric hospitals, signed in as patients by their parents, when a class action suit brought the matter before the Supreme Court. Such children were often reluctant or unwilling “volunteers,” but did not have the same rights to judicial oversight at a hearing as adults do when facing forced psychiatric hospital admission. A class action suit against the Georgia state mental hospital system sought to challenge those admission procedures for minors as a violation of the Due Process Clause of the Fourteenth Amendment (Parham v. J. R., 1979).
This case challenged parental authority with particular attention to older, more mature minors, arguing that hospitalization constituted an unnecessarily restrictive treatment. Under the Georgia statute, the voluntary admission of children to state hospitals required an application signed by a parent or guardian. The hospital superintendent could then temporarily admit any child for “observation and diagnosis.” If, after observation, the superintendent found “evidence of mental illness” and suitability for treatment, the child could be admitted “for such period and under such conditions as may be authorized by law.” The U. S. District Court held this scheme unconstitutional by not adequately protecting the children’s due process rights including a hearing before an impartial tribunal. However, the Supreme Court reversed that decision holding that due process does not require a legally trained neutral factfinder. In essence the court held that the admitting physician acted as a neutral factfinder. The court noted that medical decision-making is not error free, but neither is the legal process. In essence, the court ruled that parents and physicians know best (or at least better than the courts) when making such decisions.
Specific policies affecting family life can clearly vary widely from jurisdiction to jurisdiction, based on state and local practices. The general principle to keep in mind as a child psychotherapist is that the courts will generally support parental authority in making decisions on behalf of their children. The exception would be situations in which the child’s welfare would be put at risk by the parent’s actions or inaction.
Therapists from many professions treat couples and families and all professional associations’ ethics codes urge establishing and maintaining competence. However, only the American Association for Marriage and Family Therapy has established specific Core Competencies for practice (AAMFT, 2004).
These are arranged into six primary and five secondary domains, but they do not give any more specific guidance on the components that translate into competent practice in work with children, couples, or families than other professional codes. For example, the six primary domains include:
In essence, the competencies restate common ethical fundamentals of integrity, consent, acquisition of therapeutic and diagnostic skills, knowledge of legal/ethical standards, and keeping current in the field. Stanton and Welsh (2011) made solid efforts to provide greater clarity with special attention to psychologists. They too addressed fundamentals such as assessment, intervention, consultation, ethical and legal practices, interpersonal skills, and attention to diversity.The NASW Standards for Clinical Social Work Practice (2005) touches briefly on the matter in their Standard 2 dealing with Specialized Practice Skills and Interventions by stating that, “Clinical social workers shall demonstrate specialized knowledge and skills for effective clinical interventions with individuals, families, couples, and groups.” The ACA focuses more attention on competencies related to diversity and culture than on couples or families as special populations (see: www.counseling.org).
This course has been designed to meet the needs for more detailed commentary and examples than the more general professional codes and practice guides provide.
An important trend in professional education involves focusing standards on development of particular competencies. For mental health practice, these have been conceptualized across six cluster areas, including science, professionalism, interpersonal, application, education, and systems (Fouad, et al., 2009; Palermo, Janicke, McQuaid, Mullins, Robins, & Wu, 2014), each associated with measureable benchmarks or behavioral anchors. With the obsessiveness typical of psychologists, these clusters may also require modification to address sub-specialty knowledge and career development modifiers. For example, psychotherapists planning to work with children may require a subset of additional skills not needed by those limiting their practice to adults. In addition, the skills needed to function successfully in a graduate student, intern, or post-doctoral training placement differ from the skills needed for entry-level independent practice, to qualify for board certification, to qualify as a supervisor or clinical manager, or to maintain one’s competence as a senior practitioner decades beyond graduate school (Barnett & Molzon, 2014; Steele, Borner, & Roberts, 2014; Verma, et al., 2009).
Such skills develop most strongly as a function of close and continually ongoing interaction with mentors and peers over time. This approach generalizes across the mental health professions and carries implications for both training and lifelong practices of therapists. Many clinical educators worry that the growing number of proprietary distance learning or external degree programs do not teach such skills effectively. A related recommendation involves training for ethics competency by using integrity checks in all course work (e.g., for plagiarism, data falsification, and misrepresentation), professionalism (e.g., for confidentiality, boundary violations, client welfare, procedural breaches), 360º evaluations in which everyone in the training environment evaluates each other, and assessing responses to actual ethical dilemmas (de las Fuentes, Wilmuth, & Yarrow, 2005; Domenech, Erickson, Cornish, Thomas, Forrest, Anderson, & Bow, 2014). Such a model would teach professionalism by example, although, disturbingly, at least one study found that a third of the graduate students surveyed reported unethical faculty behavior (January, Meyerson, Reddy, Docherty & Klonoff, 2014).
One illustration of the confusion regarding determination of competence involves the controversy over what constitutes a specialty, subspecialty, proficiency, or particular area of expertise in the practice of psychology. Clinical, counseling, industrial/organizational, and school psychology have traditionally been recognized as specialties within psychology, but there are certainly many special areas of expertise within each of these headings. For example, an industrial psychologist competent in human‑factor engineering may not be qualified to consult on personnel selection. A marriage and family therapist may not have special skill in sex therapy. A social worker with years of experience in child protective services may not have the requisite skills to work with geriatric patients. A clinical psychologist well trained in psychotherapy and assessment may lack the forensic knowledge to evaluate a juvenile defendant’s competence to stand trial. And a counseling psychologist with many years of experience as a psychotherapist to adults may be untrained in work with children. The professions have developed some specialty standards (e.g., American Association of Sexuality Educators, Counselors and Therapists; American Board of Professional Psychology; National Organization of Forensic Social Work; and National Association of Forensic Counselors), but most of the mental health professions using ethics codes rather than practice labels form the front line of defining competent ethical practice (APA: 2; AAMFT:3, 4.4; ACA:A.11.a, C2, C4, E2, F; NASW: 2.05.b, 2.10, 3.01-02, 4). In this context, all proscribe misrepresentation, but colleagues’ disagreements about the finer details will remain. What constitutes the basic qualifications needed to practice marital therapy, sex therapy, child custody and divorce mediation, or child psychotherapy? Are these specialties or subspecialties, or simply special types of competence, proficiencies, or skills?
Consider the following examples:
Charlotte Hasty, M.S.W., had practiced individual psychoanalytically oriented psychotherapy with adult clients for 10 years. After attending a half-day continuing education workshop on family therapy, Ms. Hasty began to conduct family therapy sessions for some of her clients, while reading books in the field during her spare time.
Carl Klutzkind, Ph.D., treated a woman with many adjustment problems in the wake of a separation and impending divorce. After Dr. Klutzkind had worked with the client for 6 months, her attorney asked whether he would testify in support of her having custody of her 7‑year‑old child. Despite having no forensic training or experience and no formal training, Dr. Klutzkind agreed, and from the witness stand he offered many opinions about the adjustment of the woman and her child. The client’s husband filed an ethical complaint against Dr. Klutzkind, noting that he lacked any training in child or family assessment, that he never actually interviewed the child, and that he was therefore negligent in offering an opinion. It seems that the child had been in treatment with another psychologist, and Dr. Klutzkind never sought information from that colleague or the child’s father.
In these cases, the practitioners have failed to recognize the boundaries of their respective formal training. While we acknowledge that no uniform professional standards now exist to define expertise in family therapy across professions and jurisdictions, Dr. Klutzkind and Ms. Hasty lacked even the minimum levels of competence one should reasonably possess. Dr. Klutzkind’s lack of knowledge and failure to recognize his deficiencies led him ethically astray. Perhaps his concern for his client, his desire to expound his views in court, or simple ignorance led him into trouble. His behavior clearly had a potentially hurtful impact on all the parties in the case and clearly violates both the APA’s ethics code (APA: 9.01) and other extant professional guidelines of which he seemed unaware. In Hasty’s case, we cannot say for certain whether she actually hurt or helped anyone. No one would necessarily have discovered her lack of training under normal circumstances (unless i.e., a formal complaint were filed). Ms. Hasty did not see anything wrong with applying this new (for her) technique because she regarded herself as an “experienced psychotherapist.”
When no formal standards exist for many specific types of practice or techniques, therapists must exercise prudence and take a conservative stance in assessing whether they require additional education or training prior to beginning the work. In such circumstances, we recommend seeking guidance from colleagues widely regarded as experts on the particular matters at hand. These colleagues can offer wise guidance regarding adequacy of training or of current practice standards.
Nocan Doit completed a Ph.D. in social psychology with a specialization in the study of family dynamics. When Dr. Doit sought state licensing as an LMFT, he was told that he would need to complete more than thirty credits of additional coursework taught by individuals with LMFT credentials in addition to the usual number of supervised hours of experience. Interestingly, one of the courses Dr. Doit would need to take as a student was a course in professional ethics, the same course he has been teaching for several years for MFTs. He would not receive any credit or waiver for a course he designed and taught.
Certainly a licensing board would not want to waive criteria frivolously. However, many mental health professions establish guild-oriented barriers or hurdles for potential practitioners to overcome that have little to do with actual competence and more to do with controlling access to the professional license. The ethical challenges represented by this issue were well described by in a classic paper on the unintended consequences of requiring a license to help (Danish & Smyer, 1981). Policies put in place with the goal of protecting the public by assuring the competence of practitioners sometimes fail to accomplish that goal.
When practicing in a multicultural context, some mental health professionals seem oblivious to cultural nuance, subject to biases inherent in the majority culture, or too ready to buy into social and ethnic stereotypes. This becomes a particularly knotty issue when dealing with families.
Sociologists would warn us to remain mindful about “otherness” and the inherent power associated with societal majority status whether that involves gender, race, religion, national origin, sexual expression, social class, socioeconomic status, or other circumstances that place a person outside the cultural mainstream to which the mental health practitioner belongs (Leong, 2015; Rosenbaum & Travis, 2015).
Those with greater awareness of multicultural issues may at times feel trapped in an either/or situation. Either they must follow the ethical guidelines of their professional organization, and in so doing act in a manner they consider inappropriate, or they may take what feels like a more appropriate action while bending or violating ethical guidelines (Pack-Brown & Williams, 2003; Comas-Dias, 2011). We have no easy solutions, but encourage active engagement in thinking through these issues with a grounding in individual differences and a thoughtful decision-making process.
The major mental health professions approach definitions very differently, largely as a result of their origins and traditions. The APA does not include the word “diversity” in its ethics code, but includes respect for the rights and dignity of others as a main principle (APA: Preamble, Principle E), citing vulnerable populations and calling out age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status. The AAMFT likewise does not use the word “diversity,” but cites responsibility to clients as a key principle (AAMFT: Principle 1) and calls for non-discrimination based on race, age, ethnicity, socioeconomic status, disability, gender, health status, religion, national origin, sexual orientation, gender identity, or relationship status (AAMFT: 1.1).
The ACA code, however, cites diversity and multiculturalism more than 20 times (Preamble, and Principles A, B, C, E, F, and G). The ACA calls out discrimination based on age, culture, disability, ethnicity, race, religion/spirituality, gender, gender, identity, sexual orientation, marital/partnership status, language preference, socioeconomic status, immigration, status, or any basis proscribed by law (ACA: C.5). The NASW calls for respect for others and for diversity in several sections of its code, including a call for social action and preventing oppression on such matters (NASW: Preamble, 1.05, 2.01, 4.02, and 6.04). NASW calls out race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, and mental or physical disability.
The reasons why we find some specific protected categories in only one profession’s ethics remains a mystery. These include: age (APA), health status (AAMFT), political beliefs, (NASW), immigration status (NASW), partnership status (ACA), and spirituality (ACA). One hopes that inappropriate discrimination on any basis would not be tolerated by any of the mental health professions.
The APA focuses its approach on the assumption that personal and human rights will be respected across all people (Preamble), and stresses application of scientific concepts by such steps as stressing validity and appropriate language use in assessments (APA: 9.02 b and c). The ACA calls out a need for multicultural perspectives in assessment (E.8), personal values (A.11.b), boundary setting (C.2.a), client rights B.1.a), responsibilities to patients (B.5.b), continuing education (C.2.f), gatekeeping F.6.b), education (F.7.c, F.11.a-c), and research (G). The NASW focuses on fundamental rights (Preamble), cultural competence (1.05), respect (2.01), discrimination (4.02), and social/political action (6.04).
The APA has also gone on to offer detailed practice guidelines for many populations including:
Underpinning all of the vulnerabilities and special population needs is a recognition that respect for all people will require patience and attention to context.
In the health professions, we often use jargon and diagnostic codes to signal behavior or symptom patterns. The term schizophrenia, for example, denotes disturbed thinking and possibly delusions or hallucinations. However, not all individuals with schizophrenia will show the same behavior, voice the same concerns, or respond to the same interventions. At times it seems too easy to categorize patient populations with a kind of short-hand label (e.g., Black, Latino, Asian, Christian, Jewish, Muslim, middle-class, undocumented, etc.), but in reality, as with the schizophrenia label, such classifications tell us very little.
Consider people with dark skin living in the United States. The term Black Americans could describe individuals with dark skin whose ancestors came to America on slave ships, and who had the experience of growing up in the South with keen recognition of that history. It could include individuals with a range of skin colors, reflective of inter-racial ancestry. It could include individuals born in the United States of parents who immigrated from Africa or the Caribbean with no clear link to the era of slavery. The term African-American or Afro-Caribbean might apply to some of those with dark skin whose ancestors were enslaved, but it could also refer to people who voluntarily migrated from Africa to North America or to Caucasians born in Africa under colonial rule or after.
North America’s history of slavery leads into the important consideration of how non-indigenous people came to live here and how that process bears on subsequent generations. Some arrived here kidnapped into slavery, and had lives of forced servitude for generations. Some came as immigrants, deliberately seeking a better life. Others came as refugees, forced to leave their country to escape persecution, war, famine, or natural disasters. These origins play an important role in shaping the psychological status of first and subsequent generations, too often overlooked by mental health clinicians.
Consider the population of the United States with a heritage of Spanish as a first language. Did they come to the mainland from Puerto Rico, a United States Territory, as non-English speaking U. S. citizens? Did their ancestors cross the border from Mexico without documentation? Did they migrate from the Caribbean, or Central or South America? Did their families cross from Cuba to Florida on an over-crowded boat? Did they come to the United States from Europe? Do variations in their skin color or dialect subject them to discrimination even within the Spanish-speaking community?
Even North America’s indigenous peoples have quite disparate life experiences that bear on their identities and the problems they have encountered as a result of their differentness. Native Americans who grew up in poverty on a rural reservation, or who were forcibly removed from their families as children, will have quite different life contexts from members of more assimilated tribes far from a reservation or who benefitted from tribal casino revenues. Did their ancestors live in coastal forests, plains, or pueblos? Were their ancestors nomadic hunters or agrarian? How have their tribes’ interactions with the immigrant settlers to North America influenced their traditions, native language, cultural practices, living circumstances, and social integration today?
How about citizens or residents with roots in Asia? China or Taiwan, South or North Korea, India or Pakistan, Japan, Cambodia, Thailand all have very different languages, traditions, cultures, and life experiences. Similar variations in language, culture, education, and experience can be found among racial and ethnic groups who share some language or phenotypic similarities but are otherwise quite different.
Religious traditions also may not translate across phenotype, and easily fall prey to stereotypes. What does it mean to be Catholic, Protestant, Lutheran, Methodist, Presbyterian, Southern Baptist, or Christian? Are all Jews basically the same, from the ultra-orthodox to the secular reformed? What values differ between the Sunni and Shiite traditions of Islam? How about the Baha’i Faith, Hinduism, Jainism, Paganism, Sikhism, Taoism, and Zoroastrianism? What happens to religious beliefs across racial and national lines? What happens when family members choose to change religions or marry outside the religious tradition in which they grew up?
The past few decades have seen some remarkable shifts in public acceptance and tolerance of people whose gender and sexual preferences vary from the dominant preferences of society at large. Terminology and classification includes many nuances that would leave most members of the public and many mental health professionals clueless. Some people may believe that they understand the concepts of being gay, lesbian, bisexual, or transsexual, but how about: pan sexual (attraction to a person of any sex or gender), queer (a kind of umbrella term for sexual and gender minorities who are not heterosexual), intersex (genetic variations that are not clearly male or female), or cisgender/cissexual (an individual whose experiences of their own gender match the sex they were assigned at birth)? Families will vary widely on the degree to which they tolerate or accept any deviation from perceived societal norms or historical practices of the family.
What can one do? No family therapist will have the knowledge or cultural competence to serve everyone who may walk through the office door. At times such differences may well require the clinician to confront challenges created by a privileged, sheltered, or simply quite different upbringing from that of the client. However, we should know enough to recognize the power of gender, sexuality, race, religion, culture, language, exclusion, and other factors in shaping people’s behavior, and stand prepared to respectfully serve them whether that entails making a referral, seeking consultation, or otherwise focusing on how best to meet their needs.
Consider the cultural issues illustrated in the following cases:
Saanvi and Viviaan Patel were born and raised near Kolkota, India. Their marriage was arranged by family in India, before they moved to the United States four years ago. They have been together for eight tempestuous years. After taking a family history and sitting through an angry 90-minute session, Carl Clueless asks whether they have considered divorce. The Patels never return for a second session.
Jacob Jumble, Ph.D. began couples therapy with Lee and Blake Blurry. Both were born genetically male, but Lee is transitioning from a male to female. Dr. Jumble, having failed to ask “what is your preferred gender pronoun?” continues to misgender Lee, calling the transitioning husband “him” when referring to her, even though Lee now identifies as “she.”
Knowing of the transgender context, Dr. Jumble could have asked Lee and Blake Blurry what pronouns they preferred and offered a simple apology for any slips or confusion in his pronoun use.
In marital, family, and group therapies, the therapist has more than one client in the session simultaneously. It seems most unlikely that the goals or best interests of every client in the treatment room will fully coincide with those of the others. Especially in marital and family work, the needs or wishes of one member will often prove quite different and at times in direct opposition to those of another (Knauss & Knauss, 2012; Lakin, 1994; Lebow, 2014; Snyder & Doss, 2005; Southern, 2006; Southern, Smith, & Oliver, 2005).
The competence needed to conduct couples or group therapies successfully also requires different techniques and training than that typically required for individual psychotherapies. Such multiple client therapies raise a host of other ethical issues, including matters of confidentiality and social coercion (Knauss & Knauss, 2012; Lasky & Riva, 2006; Lebow, 2014). In this section, we attempt to highlight some of the most common ethical dilemmas associated with multiple-client therapies with particular attention to couples and families.
Ethical guidelines dealing with a therapist’s responsibility to clients, confidentiality, informed consent, and client rights are certainly ambiguous at times, even when considering the interaction between one therapist and one client (Bass & Quimby, 2006; Gladding & Coombs, 2005; Southern, 2006; Southern et al., 2005). When treatment involves a couple or multiple family members, matters become more complicated. Treatment will often involve a therapeutic obligation or duty of care to several individuals with conflicting preferences and needs (Bass & Quimby, 2006; Gladding & Coombs, 2005; Hare-Mustin, 1979, 1980; Hines & Hare-Mustin, 1978, 1980. Margolin (1982) cited several illustrations of such conflicts. She described the mother who seeks treatment for her child so that he will behave better, which may ease pressure on the mother while not necessarily helping her child. Margolin also cited the case of the wife who seeks to surmount fears of terminating her marriage, whereas her husband’s goal focuses on maintaining the status quo. A therapist in such situations must strive to ensure that improvement in the status of one family member does not occur at the expense of another. When such an outcome may prove unavoidable (e.g., in the case of the couple whose treatment may result in the decision of one or both partners to seek a divorce), the therapist should advise the couple of that potential outcome early in the course of treatment as part of the consent process. In this type of situation, the therapist’s personal values and theoretical orientation become critically important (Hare-Mustin, 1979, 1980; Hines & Hare-Mustin, 1980).
Hugo Home, Psy.D. likes to consider himself a “gentleman of the old school” who holds the door open for women, tips his hat when passing them on the street, and generally behaves quite genially to the “fair sex.” In conducting family therapy, however, Dr. Home has a clear bias, favoring the view of women cast in the wife–mother role. He believes that mothers of children under 12 should not work outside the home and frequently asks his female clients who seem depressed or irritable whether it is their “time of the month again.” Dr. Home does not recognize how these biases might adversely affect the female partner in marital counseling.
Ramona Church, L.M.F.T., is a family therapist and devout member of a religious group that eschews same-sex marriage and divorce under any circumstances. She declines referrals of same-sex couples and continues to encourage her clients in marital therapy to work with her, “grow up,” and “cease acting out immature fantasies,” even when both partners express a serious consideration of divorce. She will often tell clients who have worked with her for several months that they will have failed in treatment and that she will have no more to do with them if they choose divorce.
At the initial session of marital therapy, Sarah Wellingood, LICSW, asked Ralph and Hope-Anna Prayer about their goals in treatment. Both stated a wish to improve their relationship and make their marriage work. It soon became increasingly clear to Ms. Wellingood that the best outcome from Hope-Anna’s perspective would be to remain in the relationship. While Ralph did not want to hurt Hope-Anna, he clearly felt an intense need to escape from the relationship in order to take his life in a preferred direction. Hope could not seem to read the signals and Ralph was not direct in expressing his wish for a divorce.
Both Dr. Home and Ms. Church have clear biases and seem either oblivious to their impact or self-righteously assertive of them. They fail to recognize the power and influence they wield as psychotherapists and their accompanying responsibility to clients. Neither should treat couples in marital therapy, at least not without a clear warning from the outset about their biases. Ms. Church is probably wise to decline to treat same-sex couples, given that deeply held religious values would place her in a biased position. Ideally, she will refer such couples to other therapists without demeaning or insulting them. However, her threat to abandon any of her clients who stray from the personal values she prescribes holds particular ethical danger. The vulnerable and insecure client may experience harm at the hands of such therapists. In addition, Ms. Church’s stance essentially threatens client abandonment. Hines and Hare-Mustin (1978) long ago highlighted the “myth of valueless thinking” and enjoined therapists to carefully assess the impact that their own values and stereotypes may have on their work.
Dr. Wellingood has found herself with two clients whose best interests (as the clients see them) diverge. It seems impossible for her to satisfy the conflicting preferred outcomes. She can help the Prayers to each articulate their needs and wishes more clearly, but she will not likely bring about a change that satisfies both clients. Her inability to obtain a result that will please both is not an ethical issue, but rather a problem of not being able to resolve diametrically opposite goals. Ideally, Dr. Wellingood will have discussed this possibility with the couple at the outset of their professional relationship as part of the consent process (see below). This seems an appropriate time in treatment to have a more direct discussion on this potential outcome with the couple.
Four decades ago, the APA Task Force on Sex Bias and Sex-Role Stereotyping (APA, 1975) noted that family therapists surveyed at that time had particular vulnerability to certain biases. Those included the assumption that remaining in a marriage represented the better adjustment for a woman and a tendency to defer to the husband’s needs over those of the wife. The same report noted the tendency to demonstrate less interest in or sensitivity to a woman’s career as opposed to a man’s, and the perpetuation of the belief that child rearing and children’s problems fall primarily in the woman’s domain. The report also noted that therapists tended to hold a double standard in response to the extramarital affairs of a wife compared to those of a husband. Although we believe social changes and better training of therapists have significantly improved the situation, we must remain aware of the historical problem even as we watch candidates for political office act out the same issues in public.
Several authors have noted that a prevailing therapeutic ideology holds that all persons can and should benefit from therapy. Some family therapists also insist that all members of the nuclear family must participate in treatment (Hare-Mustin, 1979, 1980; Margolin et al., 2005; Southern, 2006; Southern et al., 2005). What does this belief system do to a person’s right to decline treatment? Must the reluctant adolescent or adult feel pressured into attending sessions at the behest of the psychotherapist? Data suggest children as young as 14 are as competent as adults in making decisions about treatment (Grisso & Vierling, 1978; Koocher, 2003), yet it remains unclear how often young family members have a truly voluntary choice.
Ronald McRigid, M.S.W., a family therapist, was consulted by the Partial family. The Partials have three children ranging in age from 12 to 18. The youngest child had engaged in considerable acting out, including a recent arrest for destroying school property. The juvenile court judge recommended family counseling. Peter Partial, the oldest child, had no interest in participating. However, both parents and the two younger children (including the identified client) did express a willingness to attend sessions. Mr. McRigid informed the Partials that he would not treat them unless everyone attended every session.
While Mr. McRigid may have good clinical or theoretical reasons for his stance, we cannot condone coercion of any reluctant family member to participate in treatment. This does not preclude a therapist’s urging that the resistant family member attend at least one trial session or attempting to address the underlying reasons for the refusal. The therapist who strongly believes that the whole family must participate should not use coercion to drag in the reluctant member or permit that reluctant member’s refusal to deny treatment to the rest of the family who wish to have it. In such cases, the therapist should at the very least provide the names of other professionals in the community who might willingly treat the subgroup desiring treatment. When the client in question is a minor child, the therapist has a special duty to consider that client’s needs as distinct from those of the parents (Koocher, 1976, 2003; Koocher & Keith-Spiegel, 1990).
Confidentiality constitutes yet another issue that complicates marital and family therapy. Should a therapist tolerate secret-keeping or participate in it? Should parents be able to sign away a child’s right to confidentiality? The concept and conditions of confidentiality are somewhat different in the family context than in individual treatment. Often, couples may have difficulty in establishing boundaries and privacy with respect to their own lives and those of their children (Bartlett, 1996; Dishion & Stormshak, 2007; Koocher & Keith-Spiegel, 1990). Adult clients can, and should, have the ability to assert privacy with respect to their marriage and to avoid burdening their children with information that may prove frightening, provocative, or simply beyond their ability to comprehend adequately. On the other hand, many attempts to maintain secrets have a manipulative purpose and do not serve the general goals of treatment.
Adult family members will also often have secrets from each other. These may range from the trivial to the highly significant. The therapist should consider how they will handle the disclosure of secrets should one family member choose to do so directly to the therapist out of earshot of the others (e.g., in a telephone conversation or by asking for an individual session or private conversation). The best strategy will involve planning for such eventualities in advance.
The most reasonable way to handle this matter ethically would involve formulating a policy based on therapeutic goals and defining that policy to all concerned at the outset of treatment. Some therapists may state at the beginning of therapy that they will keep no secrets. Others may express some willingness to accept information shared in confidence to help the person offering it determine whether it is appropriate for discussion in the whole group. Still another option would involve discussing the resistance to sharing the information with the member in question. That approach might help the person to share the information with the family, if indicated. Secret-keeping presents the added burden of recalling which secret came from whom, not to mention the need to recall what was supposed to be kept “secret” and what was not. The therapist who fails to consider and discuss these matters in advance with family clients may make accidental disclosures within a very short time that could have serious ethical fallout.
To whom does one owe professional obligations when treating a family or a couple? Does a psychotherapist-client relationship exist when a parent participates in services only (or chiefly) to aid the child? What duties apply when a family member or the partner of a client comes into the therapy (or evaluation) session for the purpose of assisting in the care or evaluation of the primary or identified client? The answers to these questions depend on the context, but our ethical codes require that we clarify the situation and obligations with all parties at the outset of the professional relationship (APA: 3.10; AAMFT: 1.12, 1.2, and 5.2 ; ACA: A.2 and B.5; NASW:1.03 and1.13), particularly with respect to the limits of confidentiality (APA: 4.02; AAMFT: 2; ACA: B.1.d; NASW: 1.07; Health Insurance Portability and Accountability Act, 1996), and relationships with thirds parties (APA: 3.07 AAMFT:1.13; ACA: B.2.c, B.3, B.5.c, B.6.g, C.6.b, and E.6.b; NASW:1.03).
The short answer to the questions posed above requires that we recognize a duty of professionalism, respect, and care to all those who consult with us. However, the specifics of the obligations differ as a function of the particular roles we hold and how we help clients understand these different roles. When a couple arrives seeking treatment, our duties to both parties are equal. Similarly, when we agree to treat a family, we owe similar obligations to all those participating in the sessions. However, when one party has status as the identified client, our primary obligation will focus on that individual. Consider the following situations.
Lucy Lastic, Ph.D. had treated Viola Fuss for mild anxiety and depression as an individual psychotherapy client for several months. Ms. Fuss had recently become more distressed because she felt increasing tensions in her relationship with her fiancée, Knotts Snice. Ms. Fuss wondered whether Dr. Lastic could see the two of them together to help improve their relationship. Dr. Lastic agreed to see them, but matters soon worsened. Ms. Fuss had expected Dr. Lastic to take her side, and get Mr. Snice to behave differently. Mr. Snice brought up many ongoing issues of his own that he had hoped to get help with, including chronic problems with anger management and alcohol dependence.
Billy Go, age 6, had begun treatment with Wyatt B. Hoovesya, LPC for oppositional behaviors at home and school. Mr. Hoovesya saw Billy weekly for 40 minutes, spending another ten minutes with his mother, Frieda Go, offering parental behavior management guidance. At the end of the fourth session with Billy, Mrs. Go comes into the office and begins to sob. She has reached her limit in coping with a number of life stresses and is having passive suicidal ideation. She begs Mr. Hoovesya to help her cope.
In both of these cases the therapists encountered unpleasant surprises that they might have taken steps to prevent. Perhaps Dr. Lastic had no inkling of Mr. Snice’s anger and alcohol problems, but she should have taken steps to clarify her role with both Ms. Fuss and Mr. Snice in advance. If Dr. Lastic had intended to switch from individual to couples therapy, she should first have thoroughly discussed the role change, expectations and potential consequences with Ms. Fuss. If her intent was to only to briefly include Mr. Snice as a collateral participant to assist Ms. Fuss in her treatment, that role should first have been clarified with Mr. Snice, who seems in need of his own individual therapist. With respect to the Go family, Mr. Hoovesya may have explained to Mrs. Go at the beginning of treatment that his focus was on Billy and that his meetings with her were merely for parental guidance. When she presents as clearly needing treatment of her own with some urgency, Mr. Hoovesya finds himself needing to do some emergency triage and referral with a woman who may believe she is already in therapy with him.
When dealing with any kind of collateral clients, ethically sensitive therapists grasp the importance of clarifying their role and establishing the boundaries of a professional contract at the start of the interaction. If one party is not considered a client, he/she should be specifically informed of this status before professional activities begin. Such participants in therapeutic activities also need to understand that information provided in such contexts is confidential, but may not be privileged. When keeping records on the session, notation of the collateral’s status and the discussion of their role or client status should be noted. One option would involve designating the collateral participant as a “client for limited purposes” in your records and inform them of those limits.
Another important issue involves avoiding potentially detrimental boundary crossings with individuals known to be close relatives, guardians or significant others of current clients (e.g., sexual intimacies and business relationships). Terminating therapy for the purpose of circumventing this policy would also qualify as highly inappropriate. These ethical standards clearly apply to therapy clients, but can pose equally significant hazards when dealing with collateral contacts who come into a client’s treatment session.
What are you asking for when you ask a client, “Is that okay with you?” How does obtaining consent differ when one treats a couple or a family with minor children, as opposed to when one treats individuals? As noted earlier, the ethics codes of professional associations and a number of state and federal laws now make it clear that the therapist must begin obtaining informed consent at the start of a professional relationship (APA: 3.10; AAMFT: 1.12, 1.2, and 5.2 ; ACA: A.2 and B.5; NASW:1.03 and1.13). We stress “begin obtaining” because consent involves a process, rather than a simple one-time check-off or signed document. Clients may need reminders or updates as the professional relationship progresses. This forms the heart of a therapeutic contract with the couple or family.
Use of the term “informed consent” presents an interesting tautology. One can only give consent for oneself, and doing so implies a competent, knowing, voluntary act. That means the person giving consent must have the legal and mental competence to consent, have access to the information they need in an understandable format, and make the decision on a voluntary basis. In essence, there is no such thing as “uninformed consent.” Some people lack competence based on mental status or age, and they may be represented by a parent or legal guardian who gives permission for treatment. This is sometimes referred to as proxy consent. In some cases, the incompetent individual is also asked for assent, meaning that they may veto their own participation. Such vetoes are commonly allowed in research participation contexts, but are trumped in therapeutic contexts whenever the parental authority had decided that the treatment will serve the incompetent person’s best interests. Thus, parents may insist that their reluctant minor child participate in family therapy.
What about the situation in which the goals and values of the family, identified client and therapist are not completely aligned? For example, one of the most fundamental dilemmas related to therapy goals is whether to encourage a client to rebel against a problematic environment or attempt to adjust to it (Emiliussen & Wagoner, 2013; Karasu, 1980; Kocet & Herlihy, 2014; Proctor, 2014). Issues related to abortion choice, sexual preferences, religion, and family values are among the potential conflict areas. The therapist must assume responsibility for avoiding the imposition of personal values on the client while striving to optimize quality of care.
Arnold Polite, age 14, is referred to Frank Facilit, Psy.D. out of concern that he is becoming increasingly depressed and socially withdrawn. Dr. Facilit finds Arnold to be somewhat inhibited by the close, and at times intrusive, ministrations of his parents while Arnold struggles to develop a sense of adolescent autonomy. Over several months, Facilit sees good progress in his work with Arnold, but then he begins to get telephone calls from Mr. and Mrs. Polite, who express concern that Arnold is becoming too assertive and too interested in people and activities apart from the family. They express the fear that Facilit’s work with Arnold will alienate him from the family.
In this instance, the progress of the client toward more developmentally appropriate behavior alters his relationship with his parents, and they may not care for the new behavior. As we discuss in this section, the best interests of one client may well be antithetical to the best interests of a co-client or close family members. Perhaps Dr. Facilit can work toward some accommodation by means of a family conference or similar collaborative approach, but the possibility exists that this will not prove satisfactory.
Obtaining consent for treatment from a minor presents another set of issues (Fried & Fisher, 2014; Koocher & Keith-Spiegel, Molin & Palmer, 2005; Parekh, 2007; Pinnock & Crosthwaite, 2005; Potter, 2004). Although a small number of states (e.g., the Commonwealth of Virginia) permit minors to consent to psychotherapy independently of their parents, such authority represents an exception to the norm. In some states, such services could conceivably be provided as adjuncts to a minor’s right to seek, without parental consent, birth control, or treatment for sexually transmitted diseases or substance abuse. Usually, however, a parent’s permission would be needed to undertake psychotherapy with a minor client (Koocher, 1995, 2003). If a child wishes to refuse treatment authorized by a parent, there will most likely be no legal recourse, even if the proposed treatment involves inpatient confinement (Koocher, 2003; Weithorn, 1987; Weithorn, 2006). The courts have tended to assume that the mental health professional called on to hospitalize or treat the child at the parent’s behest is an unbiased third party who can adequately assess what is best for the child (Parham v. J. R., 1979). Some mental health professionals have argued that the best interests of parents are not necessarily those of children, and that mental health professionals are not always able to function in the idealized unbiased third-party role imagined by the court (Koocher, 1983; Weithorn, 1987; Weithorn, 2006).
Jackie Fled, age 13, walked into the Downtown Mental Health Center and asked to talk to someone. Jackie was seen by Amos Goodheart, Ph.D., and told him of many personal and family problems, including severe physical abuse at home. Jackie asked Dr. Goodheart not to discuss the case with “anyone, especially my folks.” Dr. Goodheart discusses his options with Jackie, explaining that he cannot offer treatment to anyone under 18 years of age without parental consent. Goodheart also discusses his duty to report suspected child abuse to the state’s Department of Child Welfare. Jackie feels betrayed.
Some decisions are too difficult or complex for children to make independently (Fried & Fisher, 2014; Koocher, 2003). While some children under age 18 may be competent to consent to treatment in the intellectual and emotional sense, it is also evident that many are not (Grisso & Vierling, 1978). Dr. Goodheart recognized two important legal obligations and an additional ethical obligation. First, he recognized that he could not legally accept Jackie’s request as a competent informed consent for treatment with all that it implies (including responsibility to pay for services), although it did not occur to him to provide Jackie with a careful explanation about the limits of confidentiality from the start of their session, as required under HIPAA (Health Insurance Portability and Accountability Act). Second, he recognized his obligation to report the case to authorities duly constituted to handle child abuse complaints. This is a statutory obligation in all states, although it certainly would have been less than professionally responsible had he sent Jackie home to additional potential abuse and done nothing. Finally, he recognized Jackie’s rights as a person and a client, taking the time to discuss his intended course of action with Jackie, thereby showing considerable respect for the child.
Jack Fury was an angry 15-year-old referred to Harold Packing, M.D., for displaying antisocial behavior, including school vandalism. After the fourth session, while Dr. Packing was in an appointment with the next client, they smelled smoke and discovered that a fire had been set in the waiting room. The fire was put out, and Dr. Packing called Jack and his parents in for a meeting. Jack acknowledged setting the fire. When Packing expressed concern that he could have been killed in the blaze, Jack replied, “Everybody’s got to go sometime.”
Dr. Packing felt so angry at Jack Fury’s fire-setting and subsequent indifference that he was unwilling to continue treating him. Whereas some therapists might have agreed to continue working with Jack, Dr. Packing was not. Presumably, he would be willing to refer the family elsewhere, giving the new therapist an appropriate warning about Jack’s behavior. Packing recognized these feelings and dealt with them promptly. Psychotherapists have no ethical obligation to continue treating clients when threatened or otherwise endangered by that client or another person with whom the client has a relationship (APA: 10.10b; AAMFT: 1.1, 3.3; ACA: A.11.c; NASW: 1.16). After all, one can hardly devote full professional attention to such clients with threats or danger looming.
In general, the therapist should assume responsibility to provide clients with the information they need to make their own decisions about therapy. The therapist should be willing to treat each client as any consumer of services has a right to expect. Although many therapists do not use written contracts, some therapists and clients do agree to highly structured written documents outlining their relationship in great detail, particularly in certain legal (e.g., court-ordered therapy) or treatment contexts (e.g., work with substance-abusing or suicidal clients). As the cases described earlier illustrate, it is very easy for people involved in couple or family therapy to misunderstand or become confused about various roles and obligations. We summarize the essential elements of any client-therapist treatment agreement in Text Box 1 from the perspective of the questions clients may have in mind. Couple and family therapists should focus on the nuances that having more than one participant in the unit of treatment might involve.
Describe the goals of treatment by specifying:
Explain what client(s) and therapist can expect regarding:
How about the increasingly common situation referred to as “failure to launch?” In such situations, adults may still live in the family home or may have returned to the family and remain financially dependent upon the parents. This circumstance may result from loss of a job, divorce, or other abrupt financial disaster. At times, however, such adults have not made the transition to implementing adult responsibilities, such as working to support themselves.
Nora Needy graduated from college six years ago and returned home to live with her parents, who have become increasingly concerned about “failure to launch” issues. They fear that Nora lacks the skills necessary to function independently and establish herself as an independent adult. Her B.A. in philosophy and personal insecurities have made finding a job difficult. She seems depressed and in a constant state of tension with them at home. They approach Sara Solver, M.S.W. for family therapy aimed at helping Nora to “get going with her life.” The parents plan to pay out of pocket for these services.
Nora’s parents seem well-intentioned, but Nora may not share their stated goals. Even though the parents are willing to pay for professional services, Nora must consent on her own to participate and to the goals of treatment. The parents may pressure Nora to attend sessions, but the therapist has an ethical obligation to enable Nora to express her wishes and preferences. The parents’ request for family therapy may reflect a wise approach, or may ignore Nora’s need for some individual work. The therapist is obligated to recognize and explore the needs and goals of all parties, rather than simply acceding to the parents’ wishes or accepting their “failure to launch” diagnosis without an adequate assessment that gives voice to Nora.
The consent-getting process for mental health professionals should generally involve a discussion with clients of goals, expectations, procedures, and potential risks (Barnett, Zimmerman, & Walfish, 2014; Becker-Blease & Freyd, 2006; Hare-Mustin, Marecek, Kaplan & Liss-Levenson, 1979; Knapp, et all, 2013). The need for a special focus on the limits of confidentiality follows later in this course. Clients might also reasonably expect warnings about other foreseeable as well as unforeseen effects of treatment. Obviously, no therapist can anticipate every potential indirect effect, but a client who presents with marital complaints, for example, might change behavior or make decisions that could drastically alter the dynamics of the relationship for better or worse. Likewise, a client who presents with job-related complaints might choose to change employment as a result of therapy. Such cautions seem particularly warranted when the client has many inadequately addressed issues and the therapist suspects that uncovering these concerns (e.g., long-repressed anger) might lead to distressing feelings.
Consider the married adult who enters individual psychotherapy hoping to overcome individual and interpersonal problems and to enhance the marriage. What if the result leads to a decision by one partner to dissolve the marriage?
Tanya Wifely enters psychotherapy with Nina Peutic, L.M.F.T., complaining of depression, feelings of inadequacy, and an unsatisfactory sexual relationship with her spouse. As treatment progresses, Ms. Wifely becomes more self-assured, less depressed, and more active in initiating sexual activity at home. Her husband feels ambivalent regarding the changes and the increased sense of autonomy he sees in his wife. He begins to believe that she is observing and evaluating him during sexual relations, which leads him to become uncomfortable and increasingly frustrated. He begins to pressure his wife to terminate therapy and complains to an ethics committee when she instead decides to separate from him.
We certainly do not have sufficient information to comprehend all of the psychodynamics operating in this couple’s relationship, but treatment did change it. Perhaps Ms. Wifely experiences the change as one for the better. She certainly has the right to choose to separate from her spouse and continue in treatment. On the basis of these facts, we cannot conclude that Ms. Peutic did anything unethical. However, we do not know whether Ms. Peutic ever informed Ms. Wifely that her obligation as a therapist was to Wifely’s mental and emotional health, not to the marriage. We must wonder whether the outcome might have been different had Ms. Peutic warned Ms. Wifely that changes could occur in the marriage as a result of her individual therapy.
Suppose that Ms. Wifely and her husband had initially sought Ms. Peutic’s services together as a couple, each stating that, “We want to improve our marriage.” In such a circumstance Ms. Peutic might have helped frame consent and a therapeutic contract by saying something such as, “I’m glad that the two of you want to work on improving your relationship, and I will gladly attempt to assist you in doing so. However, in some instances couples counseling leads to outcomes where one partner wants to stay in the relationship, and the other believes it best to end the relationship. It will be important for us to review progress and goals as our work progresses, but I did want to caution you that sometimes couples do diverge in their thinking over the course of therapy.”
In general terms, the parents or guardian of a minor child can authorize treatment of that child individually or in a family context. The most common ethical challenges occur when parental authority is split because of separation or divorce. In some instances, one parent may support treatment, but the other may object. In the context of family treatment, such objections often co-occur with visitation disruptions, behavior that may tend to estrange or alienate a parent, or the remarriage of a parent with resulting blended family concerns. In any such instances, the therapist should take care to confirm the applicability of state laws and the statements made by either parent about their authority.
When parents have joint or shared legal custody, either parent may generally grant permission for medical or psychotherapeutic care, particularly in an emergency, unless court decrees state otherwise. Similarly, either parent with joint or shared custody can demand an end to therapy of a minor child. Resisting parental demands to cease treatment could result in disciplinary actions by licensing boards. In general, the best practice would be to get permission to treat from both parents, even if only one has requested treatment and the other will not be participating (e.g., treatment to help a child adjust to a blended family after one parent with joint custody remarries).
Some circumstances may not lend themselves to seeking permission from one of the parents, even though their parental rights have not been terminated. Suppose that one parent claims to be a victim of domestic violence and is residing in a confidential shelter with her child. Consider the situation in which one parent is incarcerated at a distant facility. In these situations, seeking permission from the parent not bringing the child to treatment may be contraindicated.
When legal/physical custody is divided and parental rights have not been legally terminated, we recommend that clinicians:
When a parent is unavailable for purposes of consent or when parental contact might reasonably be expected to harm the child:
All of the normal professional and legal standards that apply to the confidentiality of mental health services and records of individuals also apply to couples and families. However, some special considerations flow from situations in which the unit of treatment involves two or more people. Most confidentiality concerns regarding individuals focus on the flow of information out of the agency or therapist’s hands, but in multiple-client contexts special considerations also apply within the couple or family.
Therapists should take care to establish rules about disclosure of information across the family. This becomes especially important if the therapist will have individual meetings with family members or will accept phone calls or messages from one member.
Whenever signing a record release form, the client should receive a copy, and the therapist should make the original a part of that client’s files. The practitioner should also keep a record of which materials were sent, to whom, and when. Clinical records should bear a confidential designation, and the recipient should remain aware of any limitations on their use. One should also exercise caution to see that only material appropriate to the need is sent. Consider this example:
Kurt Files, Psy.D. had evaluated 8-year-old Sheldon Sputter at his family’s request because of school problems. The evaluation included taking a developmental and family history, meeting with both parents, reviewing school progress reports, and administering cognitive and personality tests. Dr. Files discovered that Sheldon had a mild perceptual learning disability and was also coping poorly with a variety of family stresses, including his mother’s reaction to paternal infidelity, his father’s recent discovery that Sheldon was not his biological child, and a host of other family secrets that had recently come to light. He recommended appropriate psychotherapeutic intervention, and the family followed through. Several weeks later, Dr. Files received a signed release form from the school Sheldon attended asking for “any” information he had on Sheldon’s problem. Files responded with a letter describing the cognitive test results and referring in general terms to “emotional stresses in the family that are being attended to.”
In this situation, the psychologist recognized the school’s valid need to know information that could help better serve Sheldon. At the same time, Dr. Files recognized that some of the material bore no relevance to the school’s role, and he made the appropriate discrimination despite the vague and broad request for any information. As noted earlier, most professional association ethics codes follow APA’s recommendation to “disclose information only to the extent necessary to achieve the purposes of the consultation” (APA: 4.06(2); AAMFT: 2; ACA: B.2.e; NASW: 1.07.c).
Occasionally, a concerned family member will seek access to a client’s records. When the client is a child or deemed legally incompetent, parents or guardians generally have full legal entitlement to record access. Therapists should recognize the unique problems that arise when working with minors or families and should remain sensitive to each individual’s right to privacy and confidentiality in such circumstances. From the outset of any such relationship, all parties should receive information about the specific nature of the confidential relationship. A discussion about what sorts of information might be shared and with whom should be raised early. This is not a difficult or burdensome process when done as a routine practice.
Carla Childs, Psy.D. has treated 7-year-old Max Bashem for about a month. Max was referred for treatment because of secondary enuresis and acting-out behaviors of recent onset. The birth of a new sibling in the Bashem family several weeks ago seems to have contributed to the problem. Near the end of the fifth therapy session, Max expresses some anger about his new sibling and tells Dr. Childs, “Tonight after my parents go to bed, I’m gonna kill that little weasel!’’
Donna Rhea, age 14, also sees Carla Childs, Psy.D. regularly in individual psychotherapy, and meets together with her parents for family conferences once a month. Donna feels alienated from her parents and is sexually active. Her parents recently discovered that she has contracted genital herpes, and, in a moment of emotional distress after they learned this fact, she accused them of not being “as understanding as Dr. Childs.” The parents feel furious that the psychotherapist knew their daughter was sexually active and did not tell them. They demanded a full briefing from Dr. Childs, threatening to pull their daughter out of treatment. They also threatened to file an ethics complaint.
These two cases illustrate some difficult, but not insoluble, problems. In the case of Max, Dr. Childs must consider several factors, not the least of which concerns the seriousness of Max’s threat. Does Max have a history of violence toward others? Has he exaggerated his anger in the context of therapy for emphasis? Certainly, Dr. Childs will want to explore this issue with Max before ending the session, but suppose she does feel that he poses some risk to the sibling? Suppose that Max cannot commit himself to leave the baby unharmed in the coming week between sessions. Childs could express her concern and discuss with Max the need to help keep him from doing something he might later regret. She could talk with him about alternatives and explore a variety of them, one involving a family conference in which Max could be encouraged to share some of his angry feelings more directly. If all else fails and Childs believes that she cannot otherwise stop Max from hurting his sibling, she must discuss the matter with his parents as a duty-to-protect issue. Not to do so would constitute malpractice. While such a circumstance would be rare indeed, Childs should certainly discuss the need to violate the confidence for his ultimate benefit.
Donna’s situation poses a complex problem. Dr. Childs almost certainly would lose the trust of her client had she chosen to violate Donna’s confidence. At the same time, providing a value-free climate in psychotherapy may have the net result of unintentionally condoning Donna’s sexual behavior (Baumrind, 1990). The parents may feel jealous of the trust and respect their daughter seems to have in the psychotherapist, while feeling angry and disappointed at her sexual activity and resulting infection. A conference does not seem inappropriate, but would probably best succeed as a family meeting with Donna present. Dr. Childs could attempt to retain a supportive and therapeutic stance in such a session without necessarily breaking confidence. The sort of information the parents expect seems unclear. An outright refusal to meet with the parents in this circumstance would not serve the interests of any of the parties. Many state laws do permit minors to obtain treatment for sexually transmitted diseases or birth control information without parental consent and in confidence. Dr. Childs’ behavior does not seem inherently unethical.
A preventive step might have included a pre-treatment family conference with a discussion of the psychotherapy relationship and any attendant limitations. At such an initial meeting with both the parents and adolescent present, the therapist might begin by asking each person to describe their concerns. She could then say something such as, “Although we have not started therapy yet, adolescents often bring up topics related to sexuality, alcohol or drug use, and other issues that they would rather have treated confidentiality. How do all of you feel about respecting such confidentiality?”
The basic considerations on sharing information about children’s psychotherapy with their parents include:
Access to records sought by family members of an adult should generally be denied unless some special reason justifies considering the request. Special reasons might include the imminent-danger test or the legally adjudicated incapacity of the client.
Marla Noma lived with cancer for many years, and during that period she occasionally consulted Michael Tact, M.S.W., about her fears and concerns related to the illness. During a surgical procedure, Marla became comatose and remained alive on life support equipment, although with little chance of recovery. Members of her family plan to seek court authorization to discontinue mechanical life-support equipment and wonder whether any of Tact’s records or conversations with Marla might provide some guidance to them and the court about her wishes.
In such a case, when the client cannot speak for herself, it probably would not be unethical for Tact to respond openly to a duly authorized request for information from the next of kin. The surviving line of consent generally recognized by courts is as follows: First in line to grant consent is the spouse (even if living apart from the client, as long as they are not divorced). Second are the children of legal age, with each such child having an equal voice. Next are parents or grandparents, followed by siblings, each also having equal voice. If none of the above survive, courts will occasionally designate the next-nearest relative or closest friend.
Ury and Ima Hydin have come to Charles Cornered, MSW seeking couples therapy. Both declared the mutual commitment to improving their relationships in response to Mr. Cornered’s questions about their goals at the start of treatment. After some weeks of treatment, an impasse in the work seems evident, so Mr. Cornered decides to have one individual session each with Ury and Ima. In his meeting with Mr. Cornered, Ury discloses that he’s having an extramarital affair with a woman in his workplace, quickly followed by the words, “That’s confidential, right?”
Mr. Hydin has shown us a very different type of problem that we alluded to early under the heading of family secrets. His extramarital sexual activity runs counter to his outwardly stated shared goal in therapy and he appears to expect that Mr. Cornered will not reveal this to his wife. Mr. Cornered finds himself on the spot, because it seems he may not have clarified a cross-couple confidentiality policy. If he keeps Mr. Hydin’s behavior secret (which undermines the goal of the therapy), he is colluding with him and will likely face the anger of Ms. Hydin if/when the affair comes to light. He wishes that he had clarified his stance on keeping unilateral secrets in advance. Many therapists will not agree to keep secrets within a couple or family unit and some will not agree to individual meetings for just such reasons.
Legislative bodies across the United States have enacted statutes that require members of certain professions serving vulnerable persons to follow regulations requiring protective breaches of confidentiality. The authority for such doctrines flows from the legal principle of parens patriae. Under that doctrine, the state must act in a parentalistic role as the guardian or protector of the incompetent. The state may also use its police powers and courts to act as protector by intervening in families or forcibly confining people who pose a danger to themselves or others with protective mandates. In some circumstances, the law specifically dictates a duty to notify certain public authorities of information that might be acquired in the context of a therapist–client relationship.
The general rationale on which such laws are predicated holds that certain individual rights must give way to the greater good of society or to the rights of a more vulnerable individual (e.g., in child abuse or child custody cases; see Fisher, 2013; Kalichman, 1993). Other protected populations may include elders, disabled, or otherwise dependent individuals. Statutes in some states address the waiver of privilege in cases of clients exposed to criminal activity either as the perpetrator, victim or third party.
Shootings in schools and other public venues by troubled individuals have triggered considerable public concern, and have led to a number of legislative efforts to use mental health professionals as a kind of early warning system. One example is the Illinois Firearm Owners Identification (FOID) Mental Health Reporting System. Based on Public Act 098-0063, passed July 9, 2013, the System mandates healthcare facilities, physicians, clinical psychologists and other qualified examiners to report to an online data base any person who is adjudicated mentally disabled, voluntarily admitted to a psychiatric unit, determined to be a “clear and present danger,” and/or determined to be “developmentally disabled/intellectually disabled.” Presumably, this will prevent potentially dangerous persons from legally obtaining firearms. The act has not been tested in court at the time of preparing this course, but it again raises many ethical issues as well as the specter of using mental health practitioners as police (Kangas & Calvert, 2014; Appelbaum, 2013). While not strictly speaking a couple or family issue, presence of such weapons in the home or instability of a firearm owner may be disclosed by a family member against the wishes of the owner. As with many of the topics covered in this course, therapists should stay current on the laws in their practice jurisdictions.
Dangerousness or hazards requiring a mandated report can certainly come to light in the context of couple and family therapy. However, another common problem involves the matter of how records are kept in multiple client therapies. When treating a couple, should you keep a single record for the couple? How about when treating a family? Do you keep a single family record, or put everything in the file of a single identified client? What do you do with notes if you have an individual session with one member of the couple or family?
We recommend keeping files distinct in a manner that reflects who was present. This can become important later if someone seeks to authorize the release of the records. In the case of a couple, the record could be released to either of the people who were present as patients in the session. They were both parties to what went on. However, if an individual client brings a collateral party into their session, the collateral should have a right to only those session notes for which they were a participant. Jurisdictional laws vary regarding releases of family or couple’s records with respect to whether one or all of the adults who participated in the session must authorize release. If a family member has an individual session, those individual session notes should not be comingled with records of sessions that involved the whole family. Cases involving alleged abuse or custody disputes can prove very messy with respect to requests for records in court and other contexts, and the likelihood of those issues arising is not always clear at the outset of treatment. Consider these cases:
Clinical psychologist Polly Rost learned the hard way about the importance of consulting an attorney in response to a subpoena for records. The Pennsylvania Board of Psychology issued a formal reprimand to Rost for failing to seek legal advice in dealing with a subpoena. The parents of a child client sued the York Jewish Community Center because their child suffered headaches after a fall there. Rost released the records of the child to the parents’ attorney, and later to the Community Center’s attorney, in response to an attorney-issued subpoena. After receiving a complaint from the parents, the Pennsylvania licensing board ruled that Rost should have sought the advice of counsel before releasing records in response to the subpoena, and the courts upheld that ruling (Rost v. Pennsylvania Board of Psychology, 1995).
In 2012, Diana Kohl, a licensed marriage and family therapist, was called to testify in Steuben County (NY) family court regarding a child custody case. Both the father and his 3-year-old child had participated in court-ordered therapy sessions with her. The law guardian representing the child asked that Kohl provide all case notes from those sessions. Instead, Kohl presented a summary to the court, and announced, “I refused to give up my notes. My ethics say I am not to do that…I take lots of fragmented notes. They would not be helpful to the lawyer. There are only two exceptions to confidentiality – only if I have knowledge of child abuse, or if someone is actively suicidal or homicidal can I breech confidentiality.” Unfortunately for Ms. Kohl, Judge Joseph Latham disagreed and signed a contempt-of-court order. A few months later, following a routine traffic stop, Ms. Kohl found herself under arrest in handcuffs. Ms. Kohl ultimately gave her notes directly to Latham to review. (Murray, 2013).
Both Rost and Kohl had their own ideas about how handle the requests for records they received, and both were simply wrong. When dealing with the legal system, getting sound advice from an attorney may prove the wisest course of action.
When appropriate to release original materials from your case files, offer an authenticated notarized copy rather than the originals. If the court specifies that you must provide the originals, be certain to retain a notarized copy of the records for yourself or have your attorney do so. Important documents can easily become lost or misplaced as they travel through the legal system.
Arnold and Anita Abuser were being treated in marital therapy by Samuel Silent, Ph.D., when their child died, apparently of inflicted injuries. As the district attorney investigating the child’s death sought incriminating evidence about the couple, Dr. Silent was subpoenaed to appear before a grand jury and was questioned about the content of his sessions with the Abusers. Dr. Silent asked for a judicial determination on privilege. He noted that, as a legally mandated reporter of suspected child abuse, he would have made an official report had he suspected anything. A judge ruled that the prosecutors should have adequate latitude to investigate, and because the case involved alleged child abuse, he would order the therapist to testify or face jail for contempt of court. Mr. and Mrs. Abuser did not wish Dr. Silent to discuss any material from their sessions before the grand jury.
Dr. Silent felt caught in a particularly difficult situation. If he bowed to the court order and testified, he would violate his clients’ confidentiality against their instructions. If the Abusers are guilty and the therapist’s silence precludes prosecution, he may protect his clients to the detriment of the victim and society as a whole. In addition, if the Abusers had given Dr. Silent reason to suspect abuse, and he did not report it, he could face prosecution.
If Dr. Silent does not comply with a judge’s order to testify, he faces fines or jail for contempt of court and may thereby stand accused of breaking the law. This situation is a prime example of a point at which ethical behavior may at times seem at variance with legal requirements. If Dr. Silent believes he should not testify, the best advice would involve resisting disclosure of confidential material using all legitimate legal avenues. If such avenues become exhausted or fail, Dr. Silent’s colleagues would not likely sustain an ethical infraction against him for ultimately disclosing the confidential material (APA: 4.05; ACA: C.1; NASW: 1.07.j). When conflicts between its ethics code and the law occur, the APA advises psychologists to attempt a responsible resolution, but note that “[I]f the conflict is irresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights.” (APA: Introduction)
If Silent knew of abuse and chose to disclose details from the outset under mandated reporting laws, he would also have behaved ethically. If Silent had known of abuse and had failed to report it, he could possibly decline to testify, citing his Fifth Amendment right under the U.S. Constitution against self-incrimination, although such a claim affords no protection from the ethical impropriety of not reporting the abuse.
John Spleen, L.M.F.T., filed for divorce from his wife Sandra under less-than-amicable circumstances. John practices privately as a licensed marriage and family therapist, and Sandra believes that he lied about his income in the process of reaching a negotiated financial settlement. She seeks a court order for her spouse to disclose the names, addresses, and billing records of his clients so that she and her attorney can verify the actual annual income from his practice.
Dr. Spleen stands in a difficult position, even assuming that he has nothing to hide in his personal financial affairs. Disclosing the names and addresses of his clients could certainly prove embarrassing and stressful to the clients. Perhaps he could arrange for an independent audit of his records in confidence by a bonded professional, without the need to contact clients individually or otherwise disclose their names. In any event, the Spleens’ dispute involves a civil matter, and courts will be less likely to pursue disclosure for civil matters than for a criminal case. In a similar case, a California appellate court protected the confidentiality of the therapist’s records from the spouse, noting that public disclosure of client status itself might prove harmful to a client.
Text Box 2 includes the specific requirements of the Health Insurance Portability and Accountability Act (HIPAA) for authorizing release of records. These require a signed authorization by a person with the power to give consent (for themselves) or permission on behalf for a child or person over whom they have legal guardianship. A spouse or partner cannot authorize the release of another adult’s records unless they hold guardianship or a medical power of attorney.
Under HIPAA regulations (45 C.F.R. §164.508) each consent or release form must at minimum contain:
Certain required statements must also appear on the release form to notify the signer that:
Billing for couples and families can become complicated when financial expectations have not been clarified and when third parties become involved. Health insurers expect that treatment will focus on a particular identified patient with a defined “medical condition.” This need for individual diagnosis flies in the face of traditional family-systems thinking. Matters can become further complicated when some third party payers decline to cover “V codes” (i.e., special coding in the American Psychiatric Association’s Diagnostic and Statistical Manual that address problems forming a focus of treatment such as “partner relational problems,” “sibling relational problem,” or “parent-child relational problems”). In the newest version, DSM-5, these codes appear in a chapter titled: “other conditions that may be a focus of clinical attention.” Family therapy sessions may also warrant an extended appointment duration or require more time than the traditional 50-60 minute “therapy hour.”
Clients typically pay for mental health services in one of three ways:
Whenever some company, agency, or organization other than the therapist and client becomes involved in payment, we have a fiscal third-party relationship. There is no doubt that these third parties, their reimbursement policies, and the regulations that govern these policies have historically had a direct and powerful influence on practice and client care. Although some well-established therapists have refused to accept third-party payments (Barnett et al., 2007), it is unrealistic for most mental health clinicians to expect that they will be able to earn a living without substantial interactions with third-party payment entities. Although many therapists will have no difficulties in their relationships with these entities, very few will consider them an unmitigated blessing. This is especially true when attempting to serve couples and families for the reasons summarized at the start of this section.
Attempts to conceal the actual nature of the service rendered, or otherwise attempt to obtain compensation in the face of such restrictions, may constitute fraud. Exactly what services are covered under any given insurance policy is a matter of the specific contract language.
Becky and Barney Bicker have been separated for three months and have filed for divorce. They are contesting the custody of their two children. Their respective attorneys suggest a psychological consultation to prepare a forensic report for the courts on the best interests of the children. They are referred to Bill Lesser, Ph.D. Dr. Lesser assures the Bickers that their health insurance policy will cover his fee and proceeds with the evaluation. He subsequently files an insurance claim for his services without noting that it was conducted primarily for resolution of a custody dispute. He assigns the diagnosis “childhood adjustment reaction” to the Bicker children for billing purposes.
Roger Rotator, LMFT has begun treating the family of Carla and Clarence Chaos, including Chloris and Cleo (ages 8 and 10, respectively). The immediate precipitant for treatment was Cleo’s refusal to attend school, but a family evaluation revealed multiple problems including allegations of parental domestic violence and acting out on the playground that got Chloris suspended twice. For purposes of billing the family’s insurance carrier, Mr. Rotator must identify a single client as the focus on treatment. His first thought is to designate Cleo, but Mr. Chaos expresses a preference for designating his wife because she has already met her deductible payment for the year on other medical services. Designating her would mean that no further deductible would be owed, saving the family out-of-pocket cash.
Both of the clinicians described above may be competent and caring professionals, but their business practices may put them at odds with ethics committees or licensing boards. Dr. Lesser has engaged in unethical conduct and flirted with fraud charges. Perhaps he has not carefully inquired of the third parties in question regarding whether the services are indeed covered and is simply trying to expedite claim processing. On the other hand, Lesser and Rotator should recognize that the specific services rendered in both cases may not qualify as being mental health related or as treatment of an illness. What appears expedient and helpful to the client (i.e., making services less expensive to the client in question) may constitute illegal practices and tend to increase insurance costs for other policyholders. The most appropriate behavior would be, when in doubt, to check with the third party for explicit advice and to inform clients accurately early in the relationship about whether their coverage applies.
Drs. Lesser and Rotator may believe that they have helped their clients, but they are at risk for a “white-collar” ethical violation that costs all consumers money. Dr. Lesser may not understand that services rendered for forensic purposes may not qualify as medically necessary health care under insurance rubrics. He also may fail to grasp the hazards of confusing treatment with a custody evaluation, creating significant role complications. If Dr. Lesser has concerns that health insurance will not cover his services and worries that the Bickers might squabble over paying for his time, he may reasonably consider requesting a retainer before initiating services. Mr. Rotator may believe that all four members of the family have emotional problems. He may see no harm in accommodating Mr. Chaos’s request to save money for a family with plenty of mental health problems to go around. On the other hand, the Chaos family may be at risk for breaking up and the father’s request to assign a mental health diagnosis to the mother may be part of a strategy to frame her as unfit. If the case were reviewed and Mr. Rotator’s records reflect Cleo’s behavior as the reason for referral, his identification of the mother as the primary patient may be suspect.
Polly Substance, age 13, was brought to the office of Over Thinkin, M.S.W. Her mother was concerned that Polly had been caught smoking pot at school. Her father has a history of problems with alcohol and has allegedly been physically threatening to his wife. Polly also has a history of learning disabilities and depression. Ms. Thinkin recommended family therapy at least once per week to begin addressing the multiple problems in the family. Comprehensive Regional Associated Programs (CRAP, corporate motto: “You’re not sick until we say you’re sick’’), the managed care entity overseeing the family’s benefits, will allow only four visits each for the mother and child during a three-month period and insists on putting both on antidepressant drugs.
In this case, the therapist’s best clinical planning has been brushed aside by case managers with another agenda, presumably formulated by management with the intent of reducing costs. The preference of some managed care companies to prescribe medication instead of therapy is well documented (Protos, 1996), and most often these medications will be prescribed by an internist, pediatrician, or nurse practitioner rather than by a psychiatrist (Koocher, 2007). The ideal ethical conduct of the therapist would first involve firmly but respectfully explaining the reasons for the recommended treatment plan. Cite supportive research and other factual data whenever possible. If the case manager does not agree, respectfully ask about the appeals process or ask to speak with a supervisor. Again, make the case in a thoughtful, rational manner, stressing the potential adverse consequences of not following it (e.g., failure to address the significant family relationship problems will undermine the chances for permanent change and may result in the need for hospitalization or more extensive and costly interventions later). If there is still no favorable resolution, therapists should meet with their clients and present both their recommendations and the response of the benefits management company. Clients should also be told of their own possible recourses (e.g., complaints directly to the management company, complaints to their employer, or contacts with regulatory agencies) if they wish to pursue such options. The three ethical principles involved here are holding the best interests of the client paramount, advocating for the client in a professional manner, and involving the client in the decision-making process.
As a legal concept, fraud refers to an act of intentional deception that results in harm or injury to another. There are four basic elements to a fraudulent act:
The resulting injury may include financial, physical, or emotional harm. A variety of unethical acts might be considered fraudulent. However, in the context of family therapy, we can focus on Vignettes 28 and 29 in which the clinician’s behavior may involve intentional misrepresentations to third-party payers. We know of one rather unusual case in which a member of the clergy who was also licensed to practice psychology billed for performing a wedding by creating bogus therapy records for a couple. The insurance company turned his case over to the authorities for criminal prosecution as well as to the licensing board that held jurisdiction. In problematic cases involving billing for family therapy, the “victim” is most commonly a third-party insurer, not an individual person as more often occurs in scam situations. That fact may tempt some clinicians to overlook the hazard. However, because fraudulent billing invariably involves mailed paper transactions or electronic transmission, some violators my find themselves charged with mail or wire fraud if the value of the offense seems to warrant it.
One need look no further than the passionate debate over gay marriage in the United States to see the intensity of social, religious, family, and individual feelings on a single issue. Access to abortion, responses to domestic violence, racial profiling, mandatory drug sentences, and many other such issues raise powerful feelings about risk, discrimination, and personal values. Mental health professionals will have strong views on these issues, as will our clients. Legislation and court decisions may seem to settle matters, but that does not necessarily alter people’s feelings or keep such matters out of the psychotherapy office.
One key ethical issue involves the need to rely on sound evidence as opposed to personal opinion when addressing a clinical case on such topics. As an example, a considerable amount of research informs our field regarding the facts of parent-child relationships in families where members identify as other than “cisgender,” (the term cis or cisgender has become popular as a way to describe those whose experiences of their own gender agree with the biological sex assigned to them at birth). When such relationships come up in the course of treatment, clinicians must stand prepared to function as informed professionals, even if we have religious or social policy objections as individuals (Breshears & Lubbe-De Beer, 2014; Borden, 2014; Diamond & Shpigel, 2014; Feinstein, Wadsworth, Davila & Goldfried, 2014; Horn & Wong, 2014; Goldberg, Kinkler, Moyer & Weber, 2014). This will include assessing whether we can competently work with the clients or should consider a referral.
When dealing with clients who are immigrants, refugees, or whose strongest cultural roots lie outside North America, our laws may seem strange. Western legal culture relies on ideas such as corporations, contracts, estates, and individual rights. These concepts do not exist in some cultures and are treated quite differently in others. Often such differences relate to personal decision making, family life, religion, sexuality, and even the definition or meaning of what mental health practitioners in North America might deem psychopathology.
For example, traditional law in traditional African culture is based on “natural justice” without abstract concepts that depend on written language to elaborate concepts into theory. Traditional African law focuses on social considerations and resolving disputes via restitution of social relationships rather than a definition of right or wrong. As another example, traditional Islamic law engages the larger culture where knowledge, rights, and human nature play central roles. This might include attention to social origins, connections, and identity. The key values of traditional law in Islamic society focuses on restoring relationships and easing the resolution of disputes with considerable negotiation and judicial discretion (Post, 2003).
Consider how some cases with legal ramifications might play out in the context of individual differences.
Rivka Cohen has been in an unhappy marriage with her husband, Shlomo, for five years. They are Orthodox Jews and had consented to marry through a professional matchmaker’s services arranged by their parents. Rivka has sought treatment for depression and anxiety in the context of documented physical and emotional abuse with Dee Lemma, L.M.F.T. Shlomo has refused to participate in treatment calling it “a waste of time.” Rivka tells Ms. Lemma that she has asked Shlomo for a divorce, but he has refused. When Ms. Lemma explains that a wife can file for divorce without her husband’s permission, Rivka explains that under Jewish law, a wife seeking a divorce must get her husband’s consent in the form of a signed document called a “get” or the divorce can’t happen. A civil divorce in the absence of the religious document would put her at odds with her community. After seeking renewed assurance of confidentiality, Rivka explains that she has hired a “special rabbi” to kidnap Shlomo and force him to sign the “get.” For $50,000, paid by Rivka’s parents, the rabbi’s team will snatch Shlomo on his way home from work and use isolation and a cattle prod to obtain his signature (Bever, 2014).
Haruto Watanabe, M.D., completed his medical training in Japan and is now a psychiatric resident at County General Hospital. He was asked to consult on the case of Mrs. Sato, an 80-year-old woman who lives with her daughter and son-in-law in the United States. Mrs. Sato speaks only Japanese, although her daughter and son-in-law are fluent in both Japanese and English. Mrs. Sato has been admitted to the hospital with abdominal pain and is quite anxious. The diagnosis is gall bladder cancer, but the only people at the Hospital capable of communicating the diagnosis to Mrs. Sato are Dr. Watanabe and members of her family. The gastroenterologist has asked Dr. Watanabe to help explain the diagnosis and treatment options, but the family members express a wish to do it themselves. They tell Dr. Watanabe in Japanese that they do not believe Mrs. Sato can handle the news, and plan to tell her that it is a simple gall stone.
Ms. Lemma, a practicing Catholic, has little familiarity with Orthodox Judaism, but feels a need for more education about Rivka’s need to have a religious divorce as well as a civil divorce. She understands how emotionally distressed Rivka feels, but is stunned by the kidnapping plan. Rivka will not be talked out of the plan, and Ms. Lemma now wonders whether she has a duty to breach confidentiality to warn Shlomo or to report a planned criminal act (kidnapping) to the authorities. After investigating the situation via online searching, Ms. Lemma learned of an FBI sting operation to stop such practices (Bever, 2014) and wonders whether her client may become the victim of further violence from Shlomo if she warns him or perhaps face prosecution as a co-conspirator if she contacts the police. This might be an opportune time for Ms. Lemma to discuss potential repercussions with Rivka, including Ms. Lemma’s potential obligation to protect Shlomo from harm.
While attending medical school in Japan, Dr. Watanabe learned that physicians in Japan do not have a legal duty to inform patients of a cancer diagnosis (Masaki, Ishimoto, & Asai, 2014). Concepts of informed consent in Japan and the United States have many significant differences and it is not unusual for physicians there to deal chiefly with family members rather than involving the patient directly in medical decision-making. Still, Dr. Watanabe wonders about his obligations under U.S. law, while recognizing that he could honor the family’s request without ever letting the rest of the English-speaking medical team know the truth. Perhaps, instead of allowing himself to be used as a linguistic interpreter, Dr.Watanabe can try to educate his American colleagues by interpreting the cultural issues involved and engaging a more interactive approach between the family and medical staff.
Daleela Abbas, age 16 years, emigrated with her family from Iraq a decade ago. She comes from a devout Sunni Muslim family, and has come to a community clinic on her own, complaining of depression. During an initial intake visit, she begins to sob and discloses that she had sex with a 19-year-old boy who graduated from her high school last year. Because of the age differential, or other factors, this might trigger a mandated report to child protective services. However, the girl fears that if her parents are told (or learn of it from seeing clinic records), she will not be alive for more than a week. She says the male relatives in her family will carry out an “honor killing.” A cultural liaison to the clinic confirms that this would be very likely and certainly not preventable by police or child protective services.
This case presents many layers of complexity and to some extent may depend on state law, insofar as whether or not a mandate exists to notify authorities about the self-reported intimacies with the 19-year-old. The critical issue involves protection of the most vulnerable party, Daleela. Taking protective steps seems urgent, and those could involve the necessity of seeking protective orders and alternative, well-protected living arrangements. Expert assistance from culturally knowledgeable individuals will be needed to plan the best course of action. Any protective actions will doubtless trigger intense social pressures on Daleela to cease discussions of personal issues with those outside her family and to return home, while also putting her at great risk. Creating incomplete records by not documenting the facts may result in failure of authorities to act effectively. At the same time, access to such records by family members could also create a significant hazard.
These cases will require sophisticated cultural knowledge in order to craft interventions that adequately protect the children. The mental health clinician must stand ready to work for a suitably protective solution. In all such cases culture, tradition, or religion cannot become an explanation or excuse for not taking protective actions. We may not have the ability to protect vulnerable parties from harm beyond our sphere of professional control, but we cannot ethically neglect our obligations to our clients.
We readily acknowledge that some societies, particularly in Africa and Asia, do not place the same value on individual rights, as opposed to community rights, as do most Western societies. Therapists must remain sensitive to and respectful of cultural differences in this regard. At the same time, we must also obey the laws of the jurisdictions in which we practice. At times, this may create tensions that require helping people from other cultures to understand applicable laws and regulations that apply in the immediate circumstances at hand.
Shana Shalom, an orthodox Jewish émigré from Israel, sought counseling regarding her unhappy marriage from Hebrew-speaking therapist Tanya Talmud, L.M.F.T. Ms. Shalom later complained to the state licensing board that Ms. Talmud had discussed matters she disclosed in therapy to the family rabbi without her knowledge or consent. The rabbi in turn communicated some of the content to Ms. Shalom’s spouse. Ms. Talmud replied to the licensing board that in Israel’s orthodox Jewish communities, soliciting the aid from a couple’s rabbi often proves a useful way to address marital problems.
The licensing board censured Ms. Talmud, reminding her that she treated Ms. Shalom in her capacity as a licensed marriage and family therapist in the United States, not Israel. In addition, basic ethical principles of autonomy and human dignity entitled Ms. Shalom to have a voice in any decision about disclosing material she had offered in confidence.
Child custody disputes are among the most common triggers of licensing board and ethics complaints. Clinicians should not venture into this forensic arena without specialized training and expertise. That said, sometimes family therapists do find themselves entangled. Consider these cases.
Ben and Bettina Bombast felt so angry toward each other about their impending divorce that they could not seem to agree about anything. They certainly could not imagine agreeing on custody plans for their children, Barney and Bella. When Hugh Kidder, Psy.D., a psychotherapist in independent practice with extensive experience in child custody matters, was appointed to provide family mediation services through the court clinic, they reluctantly agreed to try. The Bombasts were amazed by Dr. Kidder’s ability to establish rapport with each of them and with the children. He refocused the parents on the children’s needs, and they ultimately agreed on a joint custody plan without judicial intervention. Dr. Kidder issued a report to the court in support of their joint decision. A few weeks after the divorce became final, the Bombasts both contacted Dr. Kidder at his private office. Barney was having some school adjustment problems, and both parents agreed that they would like Dr. Kidder to evaluate and counsel him. They expressed considerable mutual confidence in Dr. Kidder because of their previous experience with him.
Assuming that Dr. Kidder’s arrangement with the court clinic does not preclude working with former court-referred clients in this way, the Bombasts’ request may be a reasonable one. However, Dr. Kidder would first have to carefully consider and discuss with the Bombasts the nature of this role transition. Once he agrees to become the therapist for one member of the divorced family, he could not reasonably resume a mediator or evaluator role should the Bombasts again begin to bicker. His primary obligation would have become refocused on the best interests of their child. Assuming that all agree and that no other roadblocks exist, Dr. Kidder could ethically proceed in his new role.
Bob and Harriet Splinter have decided to divorce and want to do what is best for their three young children. They seek therapeutic consultation with Connie Sensus, L.M.F.T., a family counselor in the community, about joint custody and visitation options. During their sessions together, Bob acknowledges that Harriet would be better as the custodial parent because he has a drinking problem and was involved in some unsavory delinquent conduct as a youth. They agree that the children will live with Harriet, and that Bob will have frequent visitation. Just before finalizing the full divorce agreement, Bob and Harriet have a falling out over financial issues, and Bob states his intent to seek sole custody of the children. Harriet wants to call Ms. Sensus as a witness and plans to use her testimony to get Bob’s admitted character flaws on the record. Bob demands that Sensus keep confidential all that he told her.
One may not agree with either Bob’s or Harriet’s conduct, but Ms. Sensus’s lack of forethought has created a problem. In some jurisdictions, any rights of confidentiality that Bob or Harriet might assert with respect to their own mental health records could potentially be set aside if deemed in the interests of the children by a judge. If Ms. Sensus had raised this issue at the outset and had obtained consensual waivers (i.e., getting their consent to waive confidentiality rights for such purposes) from Bob and Harriet, she would be free to testify about any elements of her work with the Splinters that is relevant to the court.
Melba Meticulous, Psy.D., undertook a court-ordered child custody investigation for the Fragmento family. She conducted nearly 20 hours of interviews with the parties, the children, and collateral sources. Much of the information she gathered was relevant to the matters before the court, but some was extraneous (e.g., Mr. Fragmento wore a poor-quality hairpiece; Mrs. Fragmento’s great aunt Tillie died six years ago and her husband had the temerity to tell jokes at the wake; Mrs. Fragmento is at least 30 pounds overweight; and the maternal grandmother recently underwent a facelift). The extraneous data made their way into Dr. Meticulous’s files as she did not know which bits would be relevant as she heard them. She will now complete her report, citing all relevant factors, and either will not cite or will discard all extraneous material.
The procedures employed by Dr. Meticulous are entirely appropriate. If material she gathers proves relevant, it should become a part of the case file and her report. If any of the data collected prove to be irrelevant, they should not become a part of the permanent file.
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