Law and Ethics in Counseling

Introduction

This course provides an overview of legal and ethical issues for mental health professionals, including psychotherapists. The course is not limited to any one professional group or state, so it is applicable to professionals across the mental health field. Occasionally, examples will be drawn from state laws or a specific group. For the sake of simplicity, the course will mostly refer to psychotherapists throughout, but case managers and other mental health professionals are also intended readers of this information.
The course begins with a review of important ethical principles that underlie clinical decision-making. The next two sections delve into two of the most critical areas: confidentiality and boundaries. The course the covers a variety of additional guidelines that each combine a number of ethical principles.
Although the details can vary to some degree from state to state, the legal landscape for mental health professionals is largely independent of the region because the laws have many similarities and because of case law, malpractice liability issues, and federal laws.

Ethical Principles

Overview

A reading of any law, court judgement, or ethical guideline should be done with the welfare of clients in mind. Where there appears to be a conflict, the practitioner should consult and research the issue to ensure that they are acting on the highest possible standards.

There is a great deal of overlap between guidelines for following the law and ethical guidelines. Framers of law and judges attempt to be sensitive to ethical issues, constitutional issues, and society as a whole when enforcing or developing laws. Case law, in particular, arises out of situations that have not been adequately addressed in the law. Subsequently, laws may be passed in order to clarify the responsibilities of mental health practitioners in regard to the issue. (The Tarasoff case is an excellent and often cited example.) Similarly, ethical guidelines are modified to support compliance with the law whenever possible. Schisms between ethical guidelines and legal requirements result in notable controversies. Differences in laws from one state to the next that have ethical implications result in efforts to harmonize state laws.

Ethical codes overlap a great deal, but also show differences in emphasis. For example, the NASW code of ethics delves into issues of social justice and conflicts that social workers may encounter between the expectations on them as employees and their ethical guidelines and desire to engage in social activism.

Most regulation and enforcement of legal codes takes place through licensing boards established at the state level, although there are laws outside of mental health regulation and federal laws that can affect mental health practice.

There are historical records of ethical codes dating back to at least 2,500 years ago in the form of the Hippocratic Oath. There is also reference to an older Nigerian Healer's Code. (O'Donohue, W. T. & Ferguson, K. E., 2003) A look at the Hippocratic Oath shows a few similarities to contemporary ethics, and a lot of language that may seem bizarre to today's reader.

Licensing of mental health and other professional practice has primarily arisen out of the need to protect the public from dangerous or unethical practices. There is also ample documentation of efforts to legislate a monopolistic position on the part of some healing practices (Brown, 1992; Hamowy, 1979; Feldstein, 1977) that has been referred to as a "guild mentality."

Keep these Factors in Mind

Law and ethics undergo change more or less continuously: Laws and ethics for mental health practice have developed over time and will continue to change. This is because of evolving thinking on the nature of ethics, and courts and legislators attempting to respond to challenges that arise in protecting public safety and responding to pressure from interest groups.

Therapists follow a developmental path that affects their needs regarding law and ethics: Each practitioner gains perspective through experience and training over time. This affects their needs for consultation and supervision. At times, more experienced practitioners have been observed to improvise, perhaps trusting their instincts too much, and getting into trouble as a result. Thus, revisiting fundamentals is never a waste of time. Nor is thinking through one's actions from the perspective of protocol, that is, in terms of consciously articulated steps that are in harmony with related laws and ethical guidelines.

Ethical lapses stem from personal errors of judgement much more often than corrupt intentions. This point is intended to remind the therapist that their intent to practice lawfully is not enough. Failure to observe boundaries scrupulously, being caught up in reacting emotionally, and many other gaffes can lead to ethical and legal problems, despite innocent intentions.

Ethical dilemmas are called dilemmas for a reason: From time to time, it is likely that the practitioner will find themselves perplexed by an ethical dilemma, or concern that ethics and law clash. This is an important reason to read up and train on legal and ethical issues on an ongoing basis. One should not hesitate to get input from specialized legal counsel such as that available through national professional organizations, of which one should be a member.

Risk is a fact of life: It is important to recognize that all legal risk cannot be eliminated. Practitioners with an obsessive streak have been paralyzed by trying to attain this state of perfection. In fact, anyone can sue anyone, and laws are evolving. This means that it is possible to experience hardship by being caught up in a change in the law or unfounded accusations. There is a balance to be found between risk aversion and confident action.

Core Guidelines for Legal and Ethical Practice

Following these general guidelines provide a good measure of protection in day in and day out practice.

Systematically gain informed consent.

Make sure that clients understand your abilities and limits. Set their expectations.

Assess systematically and in detail. Draw conclusions that are fully supported be the evidence, and are cognizant of all related DSM criteria.
Operate within your scope of practice based on your experience, skills, training, and personal qualities.

Collaborate with clients and maintain a good alliance.

Explain in a supportive manner any potential legal or ethical issue in plain language, and with the client's motivations in mind.
Stay informed on the changing legal and ethical landscape.

Keep your emotional and physical self-care in perspective. Ethical misjudgments often result from excessive stress, fatigue, and unmet emotional needs.

Get support when you need it, and from the right people. Have the contact information for your national organization and malpractice provider handy in order to get legal consultation as needed.

Diversity and Ethics

Appreciation of diversity issues is a relatively recent element of ethical guidelines. This primarily concerns preventing discrimination and becoming skilled and knowledgeable about diversity issues that clients bring to the practitioner. Issues addressed have expanded from matters such as gender, race, and religion, to disability, sexual orientation and transgender issues.

Practitioners can find it ethically challenging to work with people who have cultural backgrounds or other diversity that is unfamiliar or alien to the therapist, especially when the therapist harbors conscious and unconscious biases, or has differing values. This can threaten rapport, attunement, or even a viable treatment plan.

There may even be an overt value conflict that threatens the alliance or actually triggers mandated reporting. One example is clients with a religious objection to providing medical care to their children or dependent adults.

Mental health professionals are obligated to get training in diversity issues, especially those that are most likely to occur in their practice because of an ethnic or cultural group that is prevalent in the area. When the therapist encounters a client that has unfamiliar diversity issues, the therapist should gather information and be inquisitive so as to develop a good understanding of the client's behavior and needs.

Evidence-Based Practice

Another ethical and legal issue that is relatively recent in history is that of evidence-based practice. The demand for evidence-based approaches and justification is partly a reflection of the increasing availability of research, our increasing biological understanding of mental health issues, and the increasing expectation that care of psychiatric disorders be grounded in science as much as possible.

An early, watershed case that concerned biologically informed practice was Osheroff vs. Chestnut Lodge. This case established that clinicians must inform clients of available treatment alternatives where there is a basis in research and standards of practice that supports them. (Shuman, 2007) This case involved a psychiatrist who was being treated for serious mental health issues with in an inpatient psychoanalytic program. The patient was becoming increasingly worse until he was transferred to a facility that used medication. The patient improved a great deal and successfully sued the first facility.

Scope of Practice and Competence

Therapists must be very clear about the limits of their license, their own training and experience, and their personal strengths and weaknesses. It is both an ethical and legal requirement to operate within scope of practice. Operation outside of one's scope can constitute malpractice.

The horrifying deaths of several children during "rebirthing" resulted from a lack of clarity regarding scope of practice (among other things). The practitioners were using physical measures that were highly physically and emotionally stressful, as well as producing asphyxiation. (Lowe & Ames, 2001; Janofsky, 2001; Chaffin, et. al., 2006)

Informed Consent

Informed consent is fundamental to clinical practice. It means that the clinician has ascertained that the client adequately understands (informed) and agrees with (consent) the treatment plan. It requires that the client have enough information and competence to make a meaningful decision regarding clinical care. Clients that are not competent to make such decisions need to have a guardian or appropriate caretaker be involved in treatment planning whenever possible.

Informed consent should exist for any change in treatment plan. One of the first steps in mental health treatment should be the provision of verbal and written disclosures concerning the therapist's qualifications and methods. This is a legal requirement set forth in HIPAA and in many states, and specific content to be provided is included in legislation.

Confidentiality

Cornerstone

Confidentiality is the cornerstone of the psychotherapist-client relationship because treatment depends on the client trusting the therapist. (US Department of Health and Human Services, 1999, citing Sharkin, 1995) People need to reveal very personal information and thus would be reticent to see a therapist if there were not guarantees regarding the privacy of their information.

The right to confidentiality has been codified into law in order to help preserve this trust. These laws exist, in part, because society is seen as benefiting from the availability and use of mental health services. These laws extend to institutions such as insurers that manage medical information, because the public must know that using their insurance will not compromise their personal information.

In addition to information such as diagnosis, the mere fact of having received mental health services is protected and considered confidential. This is the basis for the statement, "I can neither confirm nor deny that John Smith is or has ever been a client." For example, a person who is in a dangerous relationship may be very concerned that the person, upon learning that they are seeking help, may become aggressive.

State laws include confidentiality requirements in various codes, and federal laws that require confidentiality include HIPAA and the Code of Federal Regulations (CFR), chapter 42.

Confidentiality is an aspect of informed consent. Clients should know that their information is protected, but also that there are specific limits to that protection.

Records and Privacy

Record Maintenance and Security

Records, according to ethical and legal standards, must be secure and properly maintained in such a way that they will be accessible as required.

According to HIPAA, the provider must maintain records for at least six years from their date of creation. Professional organizations and state laws sometimes impose longer time periods.

The therapist should be the only person with access to the computer that holds any patient records or back up data. Hard copy should be locked securely in a file cabinet. (Jensen, 2008) Exceptions apply to minimum information necessary for billing, where access by appropriate designated staff or service providers is allowed.

Authorized Release of Information

Generally, the client must consent to releasing their private information before the therapist may do so, even though the therapist may feel it is in the client's best interest to release information. Exceptions to privacy will be discussed below. The most common reason for releasing information is to provide the information to a psychiatrist or other care provider. Another frequent reason is to verify compliance as required by an entity such as an employer or probation.

At times, a client may request a release of information that the therapist feels is not in the client's best interest. In such a situation, the therapist is ethically and legally obligated to refuse to make the release, and to do their best to help the client understand the reasons.

Insurers

Although insurers are required to protect privacy, therapists should provide only the minimum necessary information to them. Part of informed consent is the client knowing what information will be shared with an insurer or other entity.

A client may be concerned that diagnostic information may threaten future employment or insurance benefits. They should understand their options. ironically, the client may wish to pay out of pocket in order to avoid alerting the insurer to a diagnosis.

This issue is a moving target, so therapists should stay up-to-date on these issues.

Communications

The therapist must ensure that communication and messages are adequately secure. Potential breaches may occur with electronic communications in particular. Even a voicemail left on the home number of a person experiencing intimate partner violence may lead to harm. It is important to establish with the client how communications will be handled.

Care must be taken to protect client confidentiality from potential breaches that may occur when using voicemail and other methods to contact the client. It is wise to review with a new client what methods of contacting the client are safe and acceptable. For example, a client who fears domestic violence would not want the therapist's phone number to show on caller ID at home.

Therapists attach boilerplate text to email and faxes that warn an unintended recipient to ignore the message.

Here is example text:

CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged health care information. Any unauthorized review, use, disclosure or distribution is strictly prohibited. If you are not the intended recipient, please contact the sender immediately by reply email and destroy all copies of the original message. Thank You.

Compulsory Mental Health Treatment

A client may come to treatment in order to comply with requirements such as the disciplinary process of their employer, licensing agency, or the probation department.

Issues of compulsory referrals can confuse all parties involved, so the therapist must make sure that they understand such referrals thoroughly before accepting them. Therapists must also make every effort to educate the client and the referring party as to issues of confidentiality.

Such a client may or may not wish to receive mental health care, as they may only be coming because of the consequences of not going.

Employee assistance programs and drug programs are very likely to deal with compulsory referrals. In the case of compulsory employer referrals, the employ may be in a disciplinary process because of a performance problem of some kind. The employer may have a policy by which the disciplinary process can be extended, pending completion of mental health evaluation and treatment, so long as the employee does not perform too poorly in the mean time. Failure to go to an appropriate therapist, provide a limited release of information, and to comply with a legitimate treatment plan may lead to further disciplinary steps, including termination of employment. The client must improve his or her performance within a period of time that does not pose a hardship to the employer. (Yourell, 2007)

The employer must understand the limits of the release of information. For example, if the client does not comply, the therapist cannot go into the details, but can only indicate that the client is not in compliance. If the client suspends the release of information, as they have the right to do, then the employer needs to understand that the therapist's inability to disclose further information should always be interpreted as a lack of compliance.

How to Respond to Requests for Information

Sometimes, a therapist may be taken by surprise when a legitimate-sounding person demands information about a client. It is easy for a therapist who is inexperienced with such requests to err by revealing private information such as the fact of the person in question being their client. This is most likely when a police officer or newsperson contacts the therapist after a major event involving the client, or when an intimidating attorney calls or sends a subpoena. It is also easy to slip up with family members when there is a lack of clarity as to what information can be provided, especially where minors or dependent adults are concerned. The minor generally has the right to make decisions regarding their private information so long as they are able to consent to treatment, barring any factors that allow a breach of privacy, such as immanent threat of harm. (There may be variations in state law on this issue, so it is important to review that before acting on this last point.)

Therefore, the therapist should have the following well-rehearsed comment at the ready: "I can neither confirm nor deny that this individual is or has ever been my client." It is important to remember that the therapist is still under the duty to protect and to not disclose, even if the information has become public knowledge. This does not cancel the requirements in any way.

Privilege

Confidentiality requirements are considered to be a "duty" imposed upon the therapist by law. The law may impose another duty upon the counselor that conflicts with this duty. In such a case, the therapist must assert that one of these duties is more important than the other.
An example is a subpoena for a clinical record. There is a legal duty to respond, but the therapist must assert that the duty to protect client privacy supercedes the duty to comply with the subpoena. This is known as asserting privilege. It means that the therapist is fulfilling the duty to protect privacy.

Except for some situations such as guardianship, the client is normally the one that holds the privilege. Privilege is a legal term referring to the privilege to assert the right to privacy. If the client waves this right, the therapist may be able to reveal the private information in accordance with the client's wishes, and not beyond those wishes. Such wishes typically impose limits on the amount of information, the recipient, and the time frame of the release.
Privilege is durable, extending after death. Even when privacy has been breached through a legal requirement such as mandated reporting, that breach does not persist beyond that report. For example, the information cannot be revealed in court without client permission or a court order.

The court will issue a ruling regarding assertion of privilege. When ordered by the court to release information, the therapist can not be held liable for complying. In fact, the therapist may be subject to fine and imprisonment four contempt of court if he or she does not comply. Courts must weigh the needs of society against the needs of your client and preserving trust in mental health services so that they will be utilized by the public.

Exceptions to Confidentiality

Overview

Exceptions to confidentiality, also referred to as the limits to confidentiality, have to do with weighing the needs of society or other individuals against the value of preserving privacy and encouraging people to use mental health services without fear of losing their privacy.

The main legal justifications for breaching privacy are:

1. Threat of harm to self or others
   
2. A specific court order or administrative request from qualified authorities
   
3. The therapist needing to defend against a lawsuit by the client or to collect fees (Bernstein, B. E., & Hartsell, Jr., 2004, p. 22)
   
4. Detaining a mentally disordered person in order to carry out an evaluation
   
5. Reasonable suspicion of abuse or neglect of a minor, elder, or dependent adult
   

In responding to such requirements, it is important that the mental health professional only provide the information necessary to fulfill the purpose of the disclosure and nothing more.

Threat of Harm to Self or Others

State law provides the criteria for determining whether an individual poses sufficient risk of harm to be detained for evaluation and stabilization. It also defines the conditions under which the person can be detained beyond an initial evaluation period. The law usually specified the mandatory and discretionary duties of a therapist or other mandated person in contacting the authorities so that such a hold can be initiated, and it indicates who is authorized to initiate the hold and carry out the evaluation. Judgment as to when an individual poses harm to the public can be difficult and require consultation.

Tarasoff

Mental health professionals have a duty to protect a person who is believed to be the intended target of a potentially violent client. This is the result of the Tarasoff ruling and subsequent legislation. Essentially, when a client or family member of the client (Ewing v. Goldstein, 2004) indicates that the client poses a threat of grave injury to an identifiable victim, the therapist has a duty to protect that intended victim. There is a great deal of inconsistency in state laws and outcomes of lawsuits as to certain aspects of these situations, so the therapist should become familiar with their jurisdiction. Areas in mental health where a duty to protect have been litigated and legislated include unsafe driving, infectious disease risk, and risk of overtly violent behavior.

Issues that vary by jurisdiction include whether or not the duty to protect includes directly warning a the target of the threat, how much liability protection exists for making reports or warnings, and the degree to which the people at risk must be "reasonably foreseeable victims," as opposed to the public in general. In many states, this duty can be discharged by informing the victim and the police. (Berger & Berger, 2009) Action should be taken immediately upon learning of the threat.

The first ground was broken in this evolving area of law then the California Supreme Court ruled on such a situation in 1974. In the Tarasoff ruling, a therapist was successfully sued when an individual under his care killed another person. It was determined that the therapist had sufficient knowledge of the threat to warn the intended victim. The therapist is not expected by the law to predict violence in the absence of credible information. (Brady v. Hopper, 1983)

Good documentation of specific details and clear reasoning can serve to limit the therapist's liability in situations where there appears to be risk of violence. The same is true for making sure to review existing records adequately when receiving a referral or case transfer. (Molbert & Beck, 2003, referring to Jablonski v United States of America, 1983, and Hamman v County of Maricopa, 1989) Even if the counselor's judgement is wrong, a defensible clinical judgement can shield against liability. (Molbert & Beck, 2003, referring to White v United States, 1986)

Mental health professionals are not required or even allowed to report criminal activity on the part of clients, unless additional conditions are met.

Reasonable Suspicion of Abuse or Neglect

Therapists and other mental health professionals are among those considered to be mandated reporters of suspected or alleged abuse or neglect of children, elders, or dependent adults. Counselors are not required to prove that there has been neglect or abuse, and are not to be held liable for reporting when subsequent investigation is negative. The counsel should report the information to the appropriate authority, such as the child welfare department, and should do so immediately. Therapists can not abdicate this duty or allow a supervisor or other individual to prevent them from making a required report.

The therapist can consult with the agency to which they are mandated to report the situation in question to see if an agency representative feels that a report is necessary. This can be documented and used as a defense if the agency later claims that a report should have been made. However, this is only necessary if there is doubt in the therapist's mind as to whether there should be a report. Legal counsel may be advisable as well.

Therapists only need to report allegations when they are credible. For example, there are laws that specifically state that a mentally ill or demented individual's allegation need only be reported if there is supportive evidence and the counselor has reason to believe that the allegation is not true.

Emotional abuse can be a ticklish area when it comes to mandated reporting, because there usually is no clear proof and it is much more vague to define. In an attempt to make a judgement, the therapist should consider whether there is unjustified mental suffering (a term drawn from California law), especially where the clinician would expect that a significant developmental impact would be exacted (or emotional damage, drawing again from California legal language). Witnessing recurring domestic violence is a good example. The most reliable evidence that would tie the behavior of the caretakers or parents to emotional damage would be developmental or behavioral impairment that appears to be the result of such emotional damage.

Evidence that a minor has had sex is not necessarily cause to report, even when a sexually transmitted disease or pregnancy has taken place. Whether there is cause to report depends upon additional factors.

Sex with a Former Therapist

Some states impose certain responsibilities upon a therapist who learns that a client has had sex with a former therapist. In California, this involves providing a pamphlet created by the state that encourages the client to report the experience so that the state can take action. Therapists are not allowed to report this so there is no exception to confidentiality in California. The therapist should check the laws of their state for applicable requirements.

HIV/AIDS

A client with HIV/AIDS does not typically pose a serious and immanent threat of violence to an identified individual in such a manner that the therapist would be mandated to report it as a threat.

An important point here is that a threat to the confidentiality of individuals positive for HIV, while it may protect some sexual partners, it would also pose a threat to public health by discouraging people from disclosing their status and receiving treatment. (Lin & Liang, 2005) On the other hand, an individual with a sexually transmissible disease who was not disclosing that to an identified individual could trigger a Tarasoff duty to protect.

Client Access to Their Records

Patients are considered to be owners of their medical information, although they do not own the physical files themselves. The details concerning clients' rights to their medical information are governed by state law. There, the reader will find matters such as the charges that a therapist can charge for making copies of the record, the circumstances under which the therapist may withhold access, and the deadline for providing records that are requested.

According to the HIPAA Privacy Rule, individuals (with certain exceptions), "have the right to review and obtain a copy of their protected health information in a covered entity's designated record set." (45 C.F.R. ? 164.524)

HIPAA

Introduction

The Health Information Portability and Accountability Act (HIPAA) was created to protect private health information such as medical records. HIPAA is also intended to protect people when they change jobs and to protect the rights of people with health insurance. (Dauner, 2001)

HIPAA rules apply to health care providers, including therapists and organizations that transmit private health information electronically.

The reader can find extensive information on HIPAA, including a FAQ, at www.HHS.gov/ocr/hipaa.

HIPAA Compliance is More than a Legal Consideration

Because HIPAA establishes minimum standards, even therapists who may not be regulated by HIPAA should consider compliance. This is because HIPPA is coming to be seen as a standard of care. Also, therapists may err in thinking that they are exempted, because they may take for granted certain electronic communications that actually constitute a basis for being considered a covered entity.

Some Key Parts of HIPAA for Therapists

Privacy Notice

HIPAA requires therapists to provide clients with a notice of privacy practices, and this must be done by the time of the first appointment. The therapist is to attempt to get a written acknowledgement that the client has received this notice. The notice must be posted in the therapist's office.

Treatment, Payment, and Health Care Operations (TPO)

Personal health information (PHI) is the term used in HIPAA to refer to patient clinical or medical and related administrative records. PHI is used for treatment, training, and billing. This information may be used in a variety of legitimate ways within and for transmission outside of an organization or practice. HIPAA allows, within certain constraints, the transfer of this information without a separate release for each use. (Alameda County Psychological Association, 2003, referring to Jenson, 2003)

Only the minimum necessary information may be provided, and only for legitimate and necessary purposes. (CFR 45 ? 164.502, subd. (b)) Those authorized to receive the information must continue to treat it as private medical information.

Psychotherapy Notes

In an effort to help secure the privacy of psychotherapy clients, HIPAA includes an innovation regarding what it refers to as psychotherapy notes. HIPAA defines psychotherapy notes as pertaining to "the contents of conversation" that help the therapist maintain a viable primary record and sequester the most private of information.

HIPAA defines psychotherapy notes as follows:

"Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record." (HIPAA Final Privacy Rule, Part I)

For improved privacy, psychotherapy notes are not included in the blanket TPO release of medical information. Psychotherapy notes are to be protected from anyone other than the psychotherapist and persons authorized by a release by the client. In order to enhance this security, the notes must be kept separate from other records. (CFR 45 ? 164.501, 2007)

Couples, Families, and Groups

Therapists often have a case with more than one client. The clients may be a couple, family, or a group. The collective interest of the clients may be conceived of as a client, but this does not diminish the rights of any individual in the group. Family therapy literature often treats the family as a client. Individuals hold privilege, regardless of the desires of the therapist or family members. The therapist would inform anyone requesting the record that not all parties referenced in the record have signed a release. If necessary, a summary can be created. However, when there is suspicion of abuse, the make up of the family should be disclosed so that the authorities can take proper action. For example, although information available only indicates abuse of one sibling, others may also be abused or be at risk. (Leslie, 2006c)

Couples should know at the start how the therapist handles secrets disclosed by one member of the couple. There should be agreement on this. The therapist should be sensitive to the wishes of the couple in attempting to gain agreement. (Leslie, 2006b) The couple must understand that the therapist will not hold a secret. (Leslie, 2006c)

If one member of the couple revealed that they were having an affair, and then told the therapist that they will not allow the therapist to share this information, the therapist is no longer in a position to treat the couple. (Leslie, 2006c)

Bear in mind that each individual is holder of privilege, and no agreement made in treatment can trump the legal and ethical requirements for preserving the individual's privacy according to their wishes. Although it may sound unfair, the therapist who has been told a secret will typically refer the individual with whom the therapist can not share the secret.

Group therapy is less secure than other forms, because the group members have no statutory duty to protect privacy. This should be disclosed to the members (Leslie, 2005), and the value of preserving privacy should be stressed. There should be an agreement that must be signed in order for members to participate. The risks and limits to confidentiality are part of informed consent in group treatment as in any other treatment format.

Minors, Confidentiality, and Consent

It may seem like common sense to involve parents or other family members in all aspects of treating a minor individually, but this must be weighed against issues of privacy. (Gudeman, 2006) Fortunately, the law and clinical judgement are usually in harmony when it comes to confidentiality for minors' clinical records.

The therapist should discuss privacy with parents and the minor in the beginning of treatment. Typically, the understanding is that the child will have a high level of privacy, but the therapist will discuss with the parents the child's overall status and progress in general terms only. However, when there is a threat to the child's welfare, or the therapist feels there should be a significant change in treatment, then the discussion will be more specific as needed to provide good care.

When the parents are married, the therapist can get permission from one parent to treat the child so long as the parent states that the parents are in agreement. The therapist should take care to document any discussions concerning marital status, custody, and parental agreement.

Where the parents are not married, the custodial parent (in the case of sole legal custody) can provide authorization for the child to receive treatment. Where there is shared custody, both parents should give permission for treatment. If the therapist cannot communicate with one of the parents, a review of the court order concerning custody may clarify who can provide permissions for treatment. It is important not to interfere with the rights of a custodial parent. (Leslie, 2007)

Once treatment has commenced, one of the custodial parents may wish to withdraw permission to treat. In that case, the ethical and legal mandate not to abandon a client, and the treatment needs of the child can trump the desire of the parent to stop treatment. The therapist can say that both parents must agree to terminating treatment, just as they had to agree on starting it. (Leslie, 2005b)

States have laws addressing the medical needs of minors, and needs pertaining to sexual assault. State law may indicate at what age a minor can provide their own consent for treatment for sexual assault. This includes medical and psychotherapeutic treatment. In California, this begins at age 12, although parents cannot be held responsible for payment.

States generally have laws allowing minors to consent to their own treatment when there is a threat of harm should they not receive treatment. There may be specific rules on when to notify parents.

Death of patient

Confidentiality persists after death. The individual's legal representative will most likely hold privilege.

Telemedicine

Telemedicine is the provision of health care through telecommunications. Research supports the use of telemedicine in psychotherapy. (Lovell, Cox, Haddock, Jones, Raines, Garvey, et al., 2006; Sulzbacher, Vallin, & Waetzig, 2006; Carlbring, Gunnarsdottir, Hedensjo, Andersson, Ekselius, Furmark, 2007; Shepherd, Goldstein, Whitford, Thewes, Brummell, & Hicks, 2006)

Therapists must take care to fulfill all responsibilities to clients when they provide telemedicine services, including protection of privacy. State laws have specific regulations. Oddly, in California, one form of telemedicine is interactive audio, yet communication by telephone is excluded from the definition of telemedicine.

The therapist must determine if there are contraindications to electronic services. For example, if the connection is vulnerable and the client may be easily destabilized, this poses an ethical issue. What if the connection goes bad at a critical juncture?

Informed consent should include the nature of proposed telemedicine procedures. This should include an understanding of risks to privacy and measures taken to reduce those risks.

The issue of security for the information being transmitted via telemedicine is a moving target. Therapists must understand whatever systems they are using or considering in terms of these vulnerabilities. The transmission and receipt of electronic information may have multiple nodes of vulnerability, meaning that the information is transferred at a number of points between the devices. The transmission may be highly secure, but a virus on the recipient's computer could defeat the security efforts by the other party. Therapists that do telemedicine should stay advised of developments.

Email is considered to be insecure, while Skype uses sophisticated encryption.

Boundaries

Introduction

The term "boundary" is used in the mental health field in discussing our rights, dignity, and needs. Our boundaries are the limits of what is and is not appropriate in one person's actions toward another. Boundaries have been described as being "the edge of appropriate behavior." (Gutheil & Gabbard, 1998) Although boundaries vary from relationship to relationship, and the collective sense of what boundaries should be vary from culture to culture, there is a general understanding of boundaries in terms of law and ethics.

Essentially, therapists are ethically obligated to avoid crossing client's boundaries. An important reason for this is that many clients are impaired in their ability to understand, describe, and assert their boundaries. At the same time, counselors and other mental health professionals have some credibility and authority that can easily be abused. Add to that, the nature of counseling, which is usually a very private experience that can arouse a great deal of emotion. (American Psychiatric Association, 2006) In fact, boundary issues constitute a high proportion of malpractice claims. (Norris, Gutheil, & Strasburger, 2003)

Of the various ways of identifying boundaries, perhaps the most fundamental one has to do with the welfare of the client. Ethics codes of clinical organizations have language against the clinician gratifying their own needs at the expense of the client.

It is possible to be overly rigid in defining boundaries. For example, meeting with a client outside of the office may be appropriate. Consider the work that therapists do with adolescents that have difficulty sitting face-to-face in an office setting. Many adolescents are much better able to communicate on a walk or bike ride.

Detecting Potential Boundary Issues

Of all the consults that therapists do with colleagues or legal professionals, identifying a potential boundary problem is among the most important. Therapists must always be sensitive to potential boundary issues. This can prevent malpractice litigation. Establishing expectations and understandings around fees at the outset is a way to more clearly define and respect boundaries. Financial issues with clients are a major cause of legal action and complaints. (Yourell, 2007; Bernstein, & Hartsell, Jr., 2004, p. 22)

A great number of boundary violations take place with good intentions and just enough rationalization to cause the therapist to feel justified in their actions. A major red flag occurs when the therapist begins to feel that boundary issues are the responsibility or fault of the client. (Pope & Vasquez, 1998) Self-disclosure is a tricky one, because a certain amount of self-disclosure may be appropriate. However, the therapist must ask if a self-disclosure is really for the benefit of the client. It may be for the purpose of unconsciously creating a social relationship that takes place in session. It may be for ego gratification or getting understanding. In any case, these are of no help to the client.

Areas that can signal potential boundary issues include how to express concern, when and whether to touch, adjusting fees, providing pro bono work or additional services, and serving in smaller communities that make dual relationships a near necessity.

Boundary issues are often felt as a strong impulse. The desire to change the client's opinions, morality, or personal choices can lead to overstepping the professional relationship. The same goes for responding to inappropriate client behavior such as expressions of attraction or missing appointments. The desire for non-professional or potentially romantic contact is a common impulse that can be mishandled. Even being vague about when to terminate therapy has various implications. (Bisbing, Jorgenson, & Sutherland, 1995) For example, it can take place because the profit motive is outweighing the value of independence of the client.

Since relatively small boundary violations tend to precede larger ones, this kind of awareness can save a great deal of grief. Also, an allegation of a major violation such as sex with a client is more believable when there are other violations, including smaller ones. (Kuniholm & Church, 2002)

One of the most common is the "dual relationship," in which the therapist has another kind of relationship with the client in addition to providing counseling. This can include getting a loan from the client, going into business with the client, and meeting socially.

Diversity and Community

The more a therapist understands about the cultural or social background of the client, the easier it will be to identify the client's boundaries. For example, in Latin American countries, personal space, that is, how far people sit or stand from each other, is often much less than in the U.S. and Canada.

While some boundaries may be a matter of judgment, some are very firm. For example, going into business with a client, developing a social or intimate relationship with the client, or extracting favors such as a loan or errands are considered to be unethical. Even getting a testimonial is considered unethical because it may expose the client to stigma. The client may consent to this, despite it not being in their best interest, because of the undue influence of the therapist.

There is an understanding that smaller communities make dual relationships difficult to avoid. This is especially true when there is only one therapist in the area. Therapists may take actions such as working in a different community, but this is not always a reasonable expectation because of distances between small communities. Therapists in such communities will generally define the line more liberally. For example, they might counsel their hair stylist or grocer, but not treat their administrative assistant, because the latter is a more intertwined business relationship.

Sex with Clients and Students

A Major Boundaries Issue

The connections between clients and therapists can become romantic or sexual because of the motives and needs that come with a helping relationship. Sex between therapist and client is a sufficiently frequent and serious problem that it is specifically labeled as unprofessional conduct in law. It is considered malpractice and is subject to substantial penalties, loss of license, civil liability, and imprisonment in some jurisdictions. Ethics guidelines of major clinical organizations go into some detail as to why sex with clients or patients, as well as students, is harmful and is prohibited.

A body of about 70 medical texts known as the Corpus Hippocratum was collected in the Library of Alexandria during the fourth and fifth centuries BCE. They contain text addressing sex with patients in the Hippocratic Oath: "I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free."

As the issue was beginning to be addressed by the mental health field, the senate held a Task Force on Psychotherapist and Patient Sexual Relations.

Both legally and in ethics guidelines, sex between therapist and client is considered a violation of the client's boundaries, and is considered the therapist's fault. Language in California law helps to stress this point by indicating that, once a therapist has had sex with a client, that therapist is considered, by law, to be the client's "former therapist." The language also expresses the profound change in the relationship that occurs when sex is involved. It certainly indicates that continuing therapy after sex compounds the problem.

We have discussed how various red flags and boundary crossings can precede more serious violations of boundaries. Internally, there are vulnerabilities in the therapist such as unmet emotional needs, while externally, there are behaviors that can fan the flames of desire and take the relationship, by degrees, into intimacy. As we discussed, the existence of overt red flags, such as excessive self-disclosure and meeting socially with a client, contribute to suspicion that an allegation of sexual contact is legitimate.

This point is not intended to produce an over-reaction. A therapist who gives a stranded client a ride home during a snowstorm could not be faulted for an act of kindness under such circumstances. However, if there were concerns about how the client would interpret it, the assistance might be better coming in the form of a cab ride or letting the client call upon a friend for a ride if possible. At the minimum, it would be part of therapy to discuss the real meaning of the assistance in a constructive manner.

There are ethical guidelines and laws regarding how long after the termination of treatment a sexual relationship can begin. However, an argument against ever having one has to do with the investment that the client has made in the therapist. Clients make an investment in time, money, and emotions in treatment. This investment is discarded when the relationship changes. A counter-argument to this is that most treatment is short term, maybe just consisting of a single brief consultation. This makes a specific time period seem arbitrary.

Harm

Many studies have shown high rates of bad outcomes for clients that have experienced sexual misconduct by psychotherapists. According to Pope (1989) these include: sexual dysfunction, anxiety disorders, psychiatric hospitalizations, suicide risk, depression, dissociative behavior, guilt, shame, anger, confusion, hatred, inability to trust, and feelings of worthlessness. The rates of harm appear to be roughly the same, regardless of what type of health care provider is involved. (Feldman-Summers & Jones, 1984, p. 1058) It is difficult to ascertain how many people are affected or how much harm results. An estimated 4% to 8% of victims report sexualized contact with their mental health provider. (Gartrell, et al., 1987) Further, there are controversies regarding research that attempts to ascertain the effect of sexualized contact with care providers.

Harm resulting from such contact is multifactorial. As we have discussed, sexual contact with a mental health provider is generally associated with other kinds of boundary problems. It is likely that the client will have experienced factors such as manipulation, abuse of power, and poor care. When a provider's judgment is clouded by the intimate or sexual relationship with the client, care quality is threatened. Add to that whatever psychological factors made the provider vulnerable to such errors of judgement. There is also the cultural or social aspect of stigma that can impact the client. Clients that have had a bad experience with a mental health professional will be less likely to pursue needed care in the future.

There is also the issue of harm to society that comes when the perception of the value of mental health services is tarnished in the public mind by misconduct on the part of providers.

Jorgenson and Sutherland (1993) list seven "causes of action," or grounds for a lawsuit, under which therapists who engage in sexual misconduct may be sued:  1) negligence and malpractice; 2) breach of fiduciary duty; 3) negligent infliction of emotional distress; 4) intentional torts; 5) breach of contract or breach of implied warranty; 6) "spousal claims"; and "employer liability." Malpractice is the most common cause of action, while negligence is the most common type of malpractice alleged in these suits.
 
From a psychological point of view, a powerful driver of such suits have to do with the anger evoked in dependent individuals when they experience rejection. Many therapists who become sexually involved with clients begin to feel afraid of the potential consequences and emotionally distance from the client, evoking anger. Even when the relationship remains professional, a therapist may realize that he or she has permitted or fostered too much dependence. This would be a good time to get professional consultation, because attempts to modify this situation could jeopardize the case. In one case, a dependent client accused a therapist falsely of sexual misconduct after becoming angry with the therapist for causing her to feel abandoned (the therapist had died).

Disciplinary Action and Prevention of Reoffending

The psychology of sexual misconduct cannot be boiled down into a single offender profile, but research on physicians who engaged in sex with clients resulting in disciplinary action were found to have higher rates of certain impairments that were associated with inappropriate conduct in medical school. These included irresponsibility and having a sense of being above the rules through some kind of exceptionality. They often have strong psychological defenses in the form of rationalization and denial.

Research into the issues of therapists who have engaged in sex with clients has shown that most do so on a situational basis because of their own vulnerabilities. However, their ranks include predatory, calculating offenders as well.

According to Koocher & Keith-Spiegel (2008, p. 318), these personal issues include the following:

General feelings of vulnerability
Fear of intimacy
Crises in their own sexual, romantic, or family relationships
Feelings of failure as professionals or as individuals
High needs for love or affection, positive regard, or power
Poor impulse control
Social isolation
Overvaluation of their abilities to heal
Isolation from peer support
Sexual identity and other unresolved conflicts
Depressive or bipolar disorders
Narcissistic, sadistic, and other character or predatory psychopathologies

Some are calculating and can be viewed as predatory.

Depending upon the nature and extent of sexual boundary violations, a therapist may be allowed to go through a disciplinary process that may lead to a return to practice. This can include continuing education and supervision.

Unfortunately, however, research on treatment for therapists that have sexually offended is not encouraging. It is also well known that therapists who offend often do so for years without being caught. This has even been true for therapists who returned to practice, but resumed offending as well.

The Emergence of the Issue

Historical figures: The history of psychotherapy has many examples of notable figures engaging in sex with clients. Not surprisingly, many ethical red flags were documented as preceding and accompanying these relationships. Both male and female psychotherapists have been documented as having such relationships, even serial relationships. **bob could add examples if there's room

Among those engaging in what is now considered to be sexual misconduct are some of the greatest figures in psychotherapy history, including Freud and Jung. Freud developed the concept of transference, and wrote that psychoanalysts should not have sex with their patients. However, he is also documented to have made various excuses for such conduct, including blaming it on patients themselves. Throughout the development of psychotherapy, many professionals placed a good deal of responsibility for sexual contact upon patients.

Freud went so far as to encourage a former student, Horace Frink, to leave his wife for a patient. The patient's family was wealthy, and it appears that Freud anticipated that such a pairing would yield funds to support his research. (Schoener, 1997)
Carl Jung apparently felt that he had no choice but to surrender to sexual impulses while continuing the see the patient with whom he was having sex. He wrote to Freud that, "the situation had become so tense that the continued preservation of the relationship could be rounded out only by sexual acts." (Schoener, 1997)

He even gave the appearance of providing care in exchange for sex. Apparently Jung was stung by rumors about the relationship, as he wrote the patient's mother stating that he, "was not the gratifier of her daughter's sexual desires but merely her doctor, and that she should free me from her." (Schoener, 1997) He pointed out that it had become easily to become entangled sexually, because he had been seeing his patient for free, and stated that if his patient wanted him to function strictly as a doctor, he should receive, "a fee as suitable recompense for (his) trouble." (Schoener, 1997) This seems to equate sex and payment rather blatantly. Jung even got Freud to write the patient's mother. Freud absolved Jung of responsibility, saying, "(I)t was not your doing, but hers." (Schoener, 1997) These historical examples don't mention any consideration of referring the patient to another provider.

In fishing for a rational-sounding term to describe his sexual relations with patients, psychoanalyst J. L. McCartney called it "overt transference." He admitted to sexual contact of various kinds with 30% of his female patients.

Just as sexual misconduct regularly involves females today, historical female figures are known to have engaged in it. Karen Horney had sexual relationships with patients and students, maintaining multiple affairs simultaneously. (Schoener, 1997) Freida Fromm-Reichmann married a patient with whom she had had sex: Erick Fromm. She took pride in her decision to terminate the psychotherapy relationship with Erick Fromm prior to marrying him. (Schoener, 1997)

Early awareness: The mental health field resisted acknowledging the realities of the problem. An early effort to report on research on sexual relations between psychologists and clients too place in the late 1960s. The Los Angeles APA suppressed the report, despite its ethical prohibition against suppressing research.

Systematic research began to emerge in the 1970s. (Pope, 2001) Malpractice carriers revealed some of the first data on this issue in the early 1970s. There was also a poll of psychiatrists. These data revealed that the problem was more extensive than had been believed. In the poll, 11% of male psychiatrists acknowledged at least one sexual relationship with a patient. Of those, 80% acknowledged having sex with more than one patient. There is an obvious limitation to such a poll: self-reporting of highly stigmatized behavior tends to be low. Estimates of sex between

Earlier research into sexual contact with health care professionals involved various physician categories. The rates ranged from 5% to 13%. Surgeons and psychiatrists reported the lowest rates.

Research predating changes beginning in the 1980s estimate a 10% rate of psychologists and psychiatrists that had sex with clients. However, it is very difficult to determine the actual rate.

In the course of their research, Masters and Johnson were surprised at the number of individuals who reported having had sex with their psychotherapists. As open-minded as they were, the researchers were nonetheless highly disturbed by the harm that these individuals reported as a result of these relationships. It caused them to assert that it should be treated as a criminal act on par with rape.

Evolution into ethics and law: Despite the secrecy and resistance, case law began to develop from the late 1960s. Beginning with Zipkin v. Freemen in 1968, a large number of successful civil suits and criminal prosecutions have taken place.

A legal basis was established for civil lawsuits, including malpractice, breach of fiduciary duty, and negligence. However, it was not until 1983 that legislation was developed. (Jorgenson & Sutherland, 1993) Because of the power differential in the relationship between the therapist and client, it is not possible to say that the client was fully able to give consent. (Appel, 2004)

It appears that increased awareness and education on the issue has decreased rates of sexual contact. Claims of patients and clients began to be taken seriously. Among the first ethical guidelines to include language addressing sexual relationships was that of the American Medical Association in 1991.

Research on prevalence suggests that rates of sexual contact between mental health providers and clients have decreased substantially, and this coincides with the changes to the legal and ethical landscape.

Prevention

Prevention efforts fall in to the following areas:

As a component of academic education, training programs, and continuing education.
Educational efforts by major clinical organizations and colleagues.
Public education by licensing boards and other sources.
The effect of civil, criminal, and regulatory actions on the profession
Cultivation of awareness and protocols on the part of clinicians.

Regarding this last point, an important part of any ethics training is to assist therapists in recognizing red flags such as early boundary issues. As we have seen from historical examples, sexual contact was often a feature of a boil of boundary problems, including attitudes that misplaced responsibility and underestimated the various types of harm such behavior could produce.

Therapists and students may feel discomfort with their sexual feelings towards clients or with the sexual issues that clients experience, including sexual attraction to the therapist. This can lead to avoidance or confusion regarding sexual boundaries, and impede the development of a more mature approach. This can be addressed by training programs through directly discussing this issue and proposing means of coping more effectively.

Additional Guidelines

Overview

The following section contains additional topics. They are included because they are additional, specific guidelines, or involve multiple ethical considerations from the areas already discussed.

Human Rights

Concerns regarding the roles of physicians and psychologists in the treatment of detainees have led professional organizations to modify ethics codes and to take actions such as issuing statements. The American Psychological Association has modified its ethics code so that psychologists must allow human rights to trump requests by organizations, including governmental organizations, that are in conflict with human rights. (American Psychological Association, 2009b)

Reasons for this position include concerns that mental health and medical professionals may confer a false sense that forms of torture are sufficiently safe and non-harmful. To the contrary, such actions are known to have cause long-term harm to victims' mental health, and it is not possible to determine the degree of distress that an individual is really experiencing under such conditions. (Silove, D. M. & Rees, S. J., 2010)

Record-Keeping and Documentation

Maximizing Client Benefit, Minimizing Legal Risk

Clinical and administrative records must be generated with client benefit as the top priority. They must be detailed enough to ensure effective treatment and administrative processes. At the same time, issues such as stigma and privacy must also be considered, as discussed in the section on confidentiality. The records must be detailed enough to show that there has been a thorough assessment, and that there is a defensible clinical rationale for the treatment plan. The must also show how the case progresses, and how treatment has been modified to address those changes. The record most show that assessment and relevance are continuous throughout treatment. Of course, components such as informed consent, policies, and clinician disclosure must also be in place. This also benefits the therapist, in that it helps to shield against successful malpractice litigation. Finally, the therapist must make sure that the record conforms to the requirements of the state.

The American Psychological Association (APA) has issued model record-keeping guidelines (American Psychological Association, 2007) located at www.apa.org/practice/guidelines/record-keeping.pdf along with various other practice guidelines.

Records Retention

Records should be maintained according to ethical guidelines and applicable law. Typically, this is state and federal law. State law and professional ethical guidelines may have higher requirements than federal. There are standards for hard copy and for electronic records and their transmission. One of the precursors for HIPAA was the vulnerability for inadvertent disclosure of thousands of records at once.

HIPAA requires a six-year period of record retention, and specifies that record destruction must ensure that privacy is preserved. Inadequate record disposal policies are a major cause of privacy breaches.

Laws generally have the retention time period begin from termination of treatment or the time that the client reaches the age of 18, whichever is later.

Policies, Agreements, and Infrastructure

Billing records are part of the treatment record, and are to be kept private. The same standards that apply to the clinical record apply to billing records.

Important details can be lost unless records are completed in a timely fashion. If the therapist's handwriting is not very legible, typed notes are preferable. So long as data is sufficiently backed up, a hard copy record may not be necessary, depending on the equipment available. Care must be taken that the terminology used would be understandable in case of a transfer of records.
Policies and agreements must be in place in case of incapacity on the part of the therapist. This should include a professional will, that is, a component of the will that specifies how records will be maintained and destroyed. Agreements with one or more colleagues should be created in advance to ensure proper execution of such plans. (Hollowly, 2003)

Threats to electronic data provide incentives for fully developed records management and security policies. Protection against data loss and security breaches begins with maintaining adequate protection against threats such as viruses. There is a great deal of information about this online and some of the best solutions are free. Avast, for example, is a free virus protection program with a good reputation. To protect against data loss because of fire, equipment theft, or flood, off-site storage should be arranged. Any computer with clinical or billing data should be kept under lock and key, with password access protection
.
A computer with client information should not be used too freely online. The computer should only be used to visit reputable websites that are least likely to attempt to install intrusive programs.

Discussions of cases on professional forums should be done with great care to avoid providing identifying information, even when the forum is limited to professional members.

Client Recruitment and Referral

In recruiting clients, therapists may advertise and network to solicit referrals, but there are ethical and legal restrictions. Therapists must not accept or offer compensation for referrals, in cash or in kind. Clinical programs have attempted to get around this by bundling payment into compensation for other services, thus disguising the payment. This is not permitted. State laws address this subject in some detail.

Fees and Payment

The therapist's fee and payment policies are part of informed consent. As such, they should be incorporated into the policies documents provided to clients. These policies can address matters such as no shows and bounced payments. The therapist should provide written notice of any planned changes in fees or policies.

It is important that clients understand that they are responsible for their bill. This means that if they are going through insurance, and the insurance company does not pay for some reason, the client is responsible for the charges. While there are responsibilities associated with terminating treatment, it is not unethical or illegal to terminate treatment when a client is unwilling or unable to pay.

Clients should know what services the therapist will and will not provide in helping the client get services approved and paid by insurance. Because clients can have difficulty managing this, many therapists will provide services such as getting authorization or sending an appeal for declined payment. Clients should know that the therapist cannot guarantee that any such services will result in a favorable result from the insurer. However, if a therapist promised to manage a process with an insurer and failed to perform as promised, there could be liability for the poor performance. Similarly, if the therapist were to continue to see the client without informing him or her that authorization of payment had been declined, this could result in the therapist having no recourse for payment.

Bartering can be a thorny issue. At the minimum, therapists who barter should make sure that the goods or services received do not exceed the market value of the services rendered.

Many therapists offer sliding scale fees so that they can accommodate clients with poor incomes. Some therapists offer this as an alternative to accepting insurance because of the low rates of reimbursement. By maintaining sliding-scale fees that are sufficiently low, clients may feel that it is worth paying the difference above their co-pay, because of the reputation of the therapist, or their initial contact with the therapist. Therapists must make sure that they are not perceived as violating their contract with an insurer by offering a rate for insured clients that is lower than that offered to clients they see without insurance. This constitutes misrepresenting the rate offered to the insurance company. It could result in accusations of insurance fraud. A way to prevent this is to have a standard fee schedule, and adjust downward from that in applying the sliding scale. (Leslie, 2006)

A common behavior that can result in criminal prosecution is that of billing for services that were not delivered, or for sessions that were longer than actually provided. This is another reason to maintain exacting records of sessions and billing, along with casenotes that would be part of a defense against such an allegation.

Assessment and Treatment Planning

Ethical and legal standards call for complete assessment and treatment planning . However, too many mental health clinicians inadequately assess and inexpertly diagnose clients. Research shows that many therapists have pet diagnoses, are overly brief in their assessments, and place too much reliance on the initial comments provided by their clients. (Spiegel, 2004) Also, there has been poor reliability in diagnoses based on the DSM criteria. (Spiegel, 2004) A number of diagnoses tend to go unnoticed and un- or under-treated. These include sleep disorders, cognitive problems and disabilities, dissociative disorders including dissociative identity disorder, drug and alcohol problems including dependence and abuse, domestic violence, and personality disorders. These problems, undiagnosed, often derail treatment.

It is also a standard of care that clinicians devise treatment plans that flow from the assessment, and to assist, as much as possible, clients in being fully invested in the plan. When a client is resistant to the ideas of the therapist, it is the therapist's responsibility to determine if there is any way to gain better rapport and agreement, or to adapt the plan to the client's beliefs and values. Negotiation and persuasion skills are very important counseling tools.

The therapist's efforts must take into account the factors that can make it difficult for the client to accept or contribute to a constructive, relevant plan. These factors may include cognitive problems, personality problems, value systems and beliefs with destructive aspects, and being easily triggered emotionally.

Therapists are obliged to inspect their own biases and actions for any prejudice or misplaced moralism that may have been absorbed from others. Polls show that much of the American public believe that persons with mental illnesses are choosing the behavior and deserve the results they get in life. When therapists sense in themselves punitive urges toward clients, it is likely that unconscious biases must be recognized and replaced with clinical skills.

To borrow a term from corporate management, the therapist is advised to adopt a 360-degree quality approach. This means having a comprehensive approach to quality. It means "looking in every direction" for opportunities to improve. One way to do this is to think of treatment from beginning to end as a flow in which many things must be in place. Also, reviewing negative outcomes, even more subtle ones such as a client prematurely dropping out of treatment, for ways to improve will yield ongoing improvement. Clinical outcomes are the yardstick by which we measure success, and every challenge and opportunity should be examined with this in mind.

Conclusion and Follow Up
We hope that this overview has given you the opportunity to return to the fundamentals in reviewing your legal and ethical practices, as well as to apply some advanced or more abstract thinking as well. Excellent follow up to this course would be to review the ethical guidelines of your association, review materials that summarize the relevant laws in your state, and review the actions that the licensing board in your state can take in response to ethical problems. We also encourage you to have the number for legal consultation from your national organization at the ready as well.

Citations
Legislation

Health & Safety Code section 123110 (d)

Code of Federal Regulations chapter 45 section 164.501 (2007). Psychotherapy notes.

Code of Federal Regulations captor 45 section 164.502 (b) (2007). Uses and disclosures of protected health information: general rules.

Case Law

Brady v. Hopper, District Court of Colorado, John P. Moore, 1983, http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/civil.htm.

Ewing v. Goldstein, 15 Cal Rptr. 3d 864 (Cal. Ct. App. 2004) and Ewing v. Northridge Hospital Medical Center, 16 Cal Rptr. 3d 591 (Cal. Ct. App. 2004)

Hamman v. County of Maricopa, 1989.

Jablonski v United States of America, 1983.

Tarasoff v. Regents of the University of California. 17 (Cal.3d 425 1976).

White v. United States, 1986.

Articles, Books and Reports

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Alban, A. (2007b). Informed consent (part 2): What it is and what it isn't. Clinical Lawyer. May 3. Retrieved on 12/7/2007

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