Ethics

This training is informational only and does not constitute legal advice.

Most of the Ethical Standards are generally written to apply to counselors in the many roles that they play. The application of an Ethical Standard may vary depending on the situation. The Ethical Standards are not extensive. The fact that a given conduct is not specifically addressed by an Ethical Standard does not mean that it is necessarily either ethical or unethical.

Ethic Codes apply only to counselors' activities that are part of their scientific, educational, or professional roles as counselors. Areas covered include but are not limited to the clinical, counseling, school practice of psychology; research; teaching; supervision of trainees; public service; policy development; social intervention; development of assessment instruments; conducting assessments; educational counseling; organizational consulting; forensic activities; program design and evaluation; and administration. Ethics Codes apply to these activities across a variety of contexts, such as in person, via mail, telephone, internet, and other electronic transmissions.

The Ethic Codes are intended to provide guidance for counselors and standards of professional conduct that can be applied by the ethics committee and by other bodies that choose to adopt them. The Ethics Code is not intended to be a basis of civil liability. Whether a counselor has violated the Ethics Code standards does not by itself determine whether the counselor is legally liable in a court action, whether a contract is enforceable, or whether other legal consequences occur.

Social workers establish relationships of trust with those with whom they work. They are aware of their professional responsibilities to society and to the specific communities in which they work. Social workers uphold professional standards of conduct, clarify their professional roles and obligations, accept appropriate responsibility for their behavior, and seek to manage conflicts of interest that could lead to exploitation or harm. Social workers consult with, refer to, or cooperate with other professionals and institutions to the extent needed to serve the best interests of those with whom they work. They are concerned about the ethical compliance of their colleagues' scientific and professional conduct. Social workers strive to contribute a portion of their professional time for little or no compensation or personal advantage.

Both law and ethics govern the practice of therapy. When making decisions regarding professional behavior, counselors must consider the Code of Ethics and applicable laws and regulations for the state in which they practice therapy. If the Code of Ethics maintains a standard higher than that required by law, counselors must meet the higher standard of the Code of Ethics. Counselors comply with the mandates of law, but make known their commitment to the Code of Ethics and must take steps to resolve the conflict in a responsible manner.

Social workers have an obligation to be familiar with the Code of Ethics and its application to their professional services. Lack of awareness or misunderstanding of an ethical standard is not a defense to a charge of unethical conduct.

Resolving Ethical Issues
Knowledge of Standards
Social workers are familiar with the Code of Ethics and the Standards of Practice and other applicable ethics codes from other professional organizations of which they are a member, or from certification and licensure boards. Lack of knowledge or misunderstanding of an ethical responsibility is not a defense against a charge of unethical conduct.

Suspected Violations
Counselors expect professional associates to adhere to the Code of Ethics. When Counselors possess reasonable cause that raises doubts as to whether a counselor is acting in an ethical manner, they take appropriate action.

When uncertain as to whether a particular situation or course of action may be in violation of the Code of Ethics, counselors consult with other counselors who are knowledgeable about ethics, with colleagues, or with appropriate authorities

Organization Conflicts
If the demands of an organization with which counselors are affiliated pose a conflict with the Code of Ethics, counselors specify the nature of such conflicts and express to their supervisors or other responsible officials their commitment to the Code of Ethics. When possible, counselors work toward change within the organization to allow full adherence to the Code of Ethics.

When social workers have reasonable cause to believe that another counselor is violating an ethical standard, they attempt to first resolve the issue informally with the other counselor if feasible, providing that such action does not violate confidentiality rights that may be involved.

When an informal resolution is not appropriate or feasible, social workers, upon reasonable cause, take action such as reporting the suspected ethical violation to state or national ethics committees, unless this action conflicts with confidentiality rights that cannot be resolved.

Social workers do not initiate, participate in, or encourage the filing of ethics complaints that are unwarranted or intend to harm a counselor rather than to protect clients or the public.

Consent for Medical Care for Minors (August 07, 2001)

Parents and their teenage children often have questions concerning their rights to consent, or refuse to consent, to medical care for a child. The parent(s) or guardian of a minor child (that is, anyone under the age of eighteen years) is generally required to give informed consent for most medical decisions on behalf of that child. However, there are exceptions, and there are certain types of medical care for which minors may themselves consent. The following discusses who may consent to medical care for a minor child. The first section covers the laws which allow minors to consent to their own medical care. The second section discusses the laws which allow parents, including divorced parents and foster parents, guardians and others to consent to medical care for minors.

Laws Authorizing Minors to Consent to Treatment
Minors authorized to consent because of their status

There are two types of laws which authorize minors to consent to medical treatment. First, there are laws which authorize minors who have attained a certain status to consent to virtually all types of health care except certain irreversible and highly invasive. Minors authorized to give legal consent to medical treatment under these laws include:

Married (or divorced) minors (Family Code ??7002 and 7050(e)(1)).

Minors on active duty with the U.S. Armed Forces (Family Code ??7002 and 7050(e)(1)).

Minors emancipated by a court order (Family Code ?7120).

Self-sufficient minors (minors fifteen years or older living away from home and managing their own financial affairs) (Family Code ?6922). These minors will generally be asked to complete a form which provides information demonstrating that they fall within the statute.

Types of treatment to which minors can consent

Second, there are a number of laws which authorize minors to consent to certain types of medical treatment. Medical treatment covered by these statutes includes:

Pregnancy, Contraception and Abortion. Care for the prevention or treatment of pregnancy (including contraception and abortion, but not sterilization) for minors of any age (Family Code ?6925). (The law which would have established a parental or court approval requirement for abortion is NOT IN EFFECT.) The right of a minor to consent to pregnancy related services includes genetic counseling and testing services which, under the law, must be offered to all pregnant women. (Health & Safety Code ?125000.)

Contagious Diseases. Care of any infectious, contagious, or communicable disease of the type which must be reported to the local health officer if the minor is twelve or older. (Family Code ?6926.)

Sexually Transmitted Diseases. Care of a sexually transmitted disease if the minor is twelve or older. (Family Code ?6926.)

Rape. Care related to the diagnosis or treatment of rape if the minor is twelve or older. (Family Code ?6927.)

Sexual Assault. Care related to the diagnosis or treatment of sexual assault for a minor of any age (but the treating physician must attempt to contact the child's parents or legal guardian unless the physician "reasonably believes" that the parent or guardian committed the sexual assault). (Family Code ?6928.)

Mental Health. Mental health treatment or counseling on an out-patient basis (not including convulsive therapy, psychosurgery or psychotropic drugs), or residential shelter services, if the minor is twelve or older and mature enough to participate intelligently and either (1) the minor is an alleged victim of incest or child abuse or (2) there is danger of serious physical or mental harm to the minor or others without such treatment. (The treating physician must contact and involve the parents unless the physician believes such contact would be inappropriate.) (Family Code ?6924.) "Residential shelter services" are defined to mean the provision of residential and other support services to minors on a temporary or emergency basis in a facility which services only minors by a governmental agency or other specified entities or individuals. Minor's parent or guardian should be included in the treatment of a minor unless, it is the opinion of the treating professional, that it would be detrimental to the minor. If the treating professional does not involve the parent of guardian then they must document the reasoning in the minor's records.

Drug or Alcohol Abuse. Care related to the diagnosis or treatment of drug or alcohol-related problems (not including methadone or LAAM treatment) if the minor is twelve or older. (The treating physician must contact the parents or guardian and give them an opportunity to participate unless the physician believes such contact would be inappropriate.) Moreover, parents have the right to seek such care and obtain the resulting medical information over the child's objection. (Family Code ?6929) Federal laws prohibiting the disclosure of certain substance abuse records may control over this state law.

HIV Tests. The performance of an HIV test for minors twelve or older. (Health & Safety Code ?121020)

Confidentiality of minor's medical records
Except as otherwise provided by law or if the minor authorizes it in writing, physicians are prohibited from telling the minor's parents or legal guardian about medical care the minor was legally able to authorize. When a minor seeks medical treatment for which the minor has the legal power to consent, for example, treatment for the prevention and care of pregnancy, and the minor's parents have no knowledge of the proposed care, the physician will generally discuss with the minor the advantages of disclosing the proposed treatment to the minor's parents or guardian before services are rendered. The physician and minor should reach an understanding concerning 1) the extent to which the parents or guardians will be informed, 2) who is responsible for paying the cost of the medical treatment and 3) to whom the physician can disclose the medical information that is necessary to obtain payment for the treatment. Minors should understand that it may be impossible to keep the information from their parents if the minor expects the parents' health plan to pay for the services.

Consent of parents and others
Adoptive Parents
If a child has been legally adopted, the adoptive parents have the same authority to consent to medical treatment as do biological parents. A stepparent has legal power to make medical treatment decisions for a minor only if he or she has legally adopted the minor.

Minors Born to Unmarried Parents
The biological mother has the legal right to make medical treatment decisions for a minor, whether or not she is married. If there is no question of the identity of the natural father, then he also has the legal right to make medical treatment decisions for the minor. In cases of uncertainty about the biological father's identity, or if the biological parents disagree about the appropriate treatment, court resolution may be necessary.

Minors Born to Minor Parents
A minor natural parent has the legal right to make medical treatment decisions for his or her minor child. It is important to make sure that the minor parent understands the nature of the treatment and the possible consequences of the treatment in order to give informed consent.

Parents Who Disagree
For most common medical procedures, it is sufficient to obtain the consent of one parent (in an intact married couple). However, if the treatment poses a significant risk to the minor, or implicates special personal or religious concerns, for example, a blood transfusion if one or both of the parents are Jehovah's Witnesses, the consent of both parents would be advisable. If the parents disagree about the advisability of the procedure, and the dispute cannot be resolved, it may be necessary for a juvenile court to intervene.

Parents Who Have Divorced
If the parents have joint legal custody, the parents must "share" the right to make health care decisions for their child. This means that either parent acting alone may consent to a recommended medical procedure, unless the court issuing the order of joint legal custody has specified that the consent of both parents is required for certain, or all, medical decisions (Family Code ??3003 and 3083.) If the parents with joint legal custody are unable to agree about the treatment that should be provided, it may be necessary to obtain a court order resolving the matter before treatment is provided, unless there is an emergency.

If a parent has sole legal custody of the child, that parent has the right to make health care decisions for the child. It should be noted that a court may award joint legal custody without awarding joint physical custody. Therefore, the fact that a child lives with one parent only does not mean that the other parent does not have the legal right to make a medical decision for the child. A parent with legal custody cannot be denied access to his or her child's medical record and information merely because the parent is not the child's custodial parent. (Family Code ?3025.)

If a custodial parent has been diagnosed with a terminal condition, as evidenced by a physician's declaration, a court may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the minor. However, such an appointment cannot be made over the objection of a non-custodial parent unless a finding has been made that the non-custodial parent's custody would be detrimental to the minor. (Probate Code ??1419.5 and 2105.)

Parents with Children under the Jurisdiction of the Juvenile Court but Living at Home It is usually assumed that parents retain the right to make health care decisions for their children even when the court has taken jurisdiction due to child abuse or neglect unless the court specifically orders otherwise.

Legal Guardians
A legal guardian has, for the most part, the same authority to consent to medical treatment for a minor as a parent would have. However, if the minor is fourteen years of age or older, no surgery may be performed upon the minor without either 1) the consent of both the minor and the guardian or 2) a court order specifically authorizing the treatment. However, if the guardian determines in good faith, based upon medical advice, that there is an emergency in which the minor faces loss of life or serious bodily injury if the surgery is not performed, the guardian's consent alone is sufficient for the surgery. (Probate Code ?2353) In addition, a guardian cannot authorize sterilization, convulsive treatment, experimental drugs or placement in a mental health treatment facility over the minor's objection. (Probate Code ?2356)

Caregivers
Certain categories of caregivers have the same rights to authorize medical or dental care as a guardian has under Probate Code ?2353. (Family Code ?6550.) The caregiver must meet the requirements of ?6550 and complete and sign an affidavit form as set out in Family Code ?6552.

A caregiver who is a relative may consent to mental health treatment (subject to the limitations imposed on a conservator by Probate Code ?2356). (Family Code ?6550(a))

Stepparents
A stepparent does not have the authority to give legal consent to medical treatment for a minor stepchild, unless the stepparent has legally adopted the child or been designated a legal guardian. If the stepparent becomes the child's adoptive parent, the stepparent takes over the rights and responsibilities of the parent who loses parental rights.

Foster Parents
A person who is licensed to provide residential foster care to a child placed with him or her either 1) by order of the juvenile court or 2) voluntarily by the person or persons having legal custody of the child, may legally give consent to ordinary medical and dental treatment for the child, including, but not limited to, immunizations, physical examinations, and x-rays. A foster parent may not give consent for other types of medical or dental treatments, e.g., surgical or experimental/controversial treatments. However, if the parent or parents have voluntarily placed the child with the foster parent(s), the parties may agree in writing to permit the foster parent(s) to consent to other types of medical treatment. Moreover, with respect to court placements, the juvenile court may expressly reserve the right to consent to medical treatment to itself. (Health & Safety Code ?1530.6.)

Foster parents who have only temporary custody of a child before a dependency hearing do not have the legal right to give consent to medical treatment for the child.

Minors Whose Parents are Unavailable
As discussed previously, consent of a parent or guardian is not necessary when the minor is authorized to consent him or herself as provided with respect to 1) certain categories of minors or 2) certain types of care. There are other exceptions to the general rule which allow children to receive necessary medical care even in the absence of a parent or guardian.
Minors 16 or Older
If a minor is sixteen years or older, and the minor has no parent or guardian available to give legal consent, the minor may apply to the superior court for consent to medical treatment. No fee may be charged for such a proceeding. (Family Code ?6911.) The California Medical Association has provided this information. For a legal opinion concerning your specific situation, consult your personal attorney.

© California Medical Association 2001

The California Child Abuse and Neglect Reporting Law
Requirements of the Child Abuse and Neglect Reporting Act (as amended effective January 1, 1999)
What is child abuse?
Physical injury which is inflicted by other than accidental means on a child by another person. (This does not include a "mutual affray between minors.")

Sexual abuse, including sexual assault (rape, incest, sodomy, lewd or lascivious acts upon a child under 14, oral copulation, penetration of a genital or anal opening by a foreign object, child molestation, any penetration of the vagina or anal opening of one person by the penis of another, any sexual contact between the mouth or tongue of one and the vagina or anal opening of another, any intrusion by one person into the vagina or anal opening of another including the use of any object for that purpose, intentional touching of a child's genitals or intimate parts or the clothing covering them for sexual gratification, intentional masturbation of the perpetrator's genitals in the presence of a child) and sexual exploitation (using a minor in obscene matter, using a child to engage in or assist in prostitution or to model in obscene materials).

Effective January 1, 1998: Sexual abuse includes situations where there is sexual intercourse between a person over 21 years and a child under the age of 16 and also when a person commits lewd or lascivious acts with a child of 14 or 15 years where the person committing the act is at least 10 years older than the child/victim.

Lewd and lascivious acts are generally defined as causing any touching of a child by the perpetrator or by the child at the direction of the perpetrator which is for the purpose of arousing, appealing to or gratifying the lusts, passions or sexual desires of the person or the child. These actions when done with a minor under 14 have been and continue to be reportable. Under the new provisions, such conduct with a 14 or 15 year old, even if supposedly consensual, by someone ten years older or more is reportable.

Neglect: negligent treatment or maltreatment or maltreatment under circumstances indicating harm or threatened harm to the child's health or welfare. This includes both acts and omissions.

Severe neglect: negligent failure to protect the child from severe malnutrition or non-organic failure to thrive; willfully causing or permitting the person or health of a child to be endangered, including failure to provide adequate food, clothing, shelter or medical care.

General neglect: negligent failure to provide adequate food, clothing, shelter, medical care or supervision where no physical injury to the child has occurred.

Physical abuse: any physical injury which is inflicted on a child by other than accidental means; any act or omission constituting willful cruelty or unjustifiable punishment of a child or unlawful corporal punishment or injury.

Willful cruelty or unjustifiable punishment of a child: willfully causing or permitting any child to suffer, or inflicting upon a child, unjustifiable physical pain or mental suffering, or while having the care or custody of any child, willfully causing or permitting the person or health of the child to be placed in a situation so that the child's health is endangered.

Unlawful corporal punishment or injury: willfully inflicting upon any child any cruel or inhuman corporal punishment or injury resulting is a traumatic condition.

Note: Unlawful corporal punishment or injury specifically does not include an amount of force that is reasonable and necessary for a person employed by or engaged in a public school to quell a disturbance threatening physical injury to person(s) or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of a pupil.

Who Must Report?
Child care custodians:
Teachers
An instructional aide, teacher's aide or teacher's assistant who has been trained in the duties of the Child Abuse and Neglect Reporting Act
Classified employees who have been trained in the duties of the Child Abuse and Neglect Reporting Act
An administrative officer
Supervisor of child welfare and attendance
Certificated pupil personnel employees
Employees of child day care or Headstart programs
An employee of a school district police or security department
Administrator or presenter of, or a counselor in, a child abuse prevention program in any school

Health care practitioners:
Physicians, dentists, podiatrists, chiropractors, licensed nurses, optometrists, dental hygienists and residents and interns
Psychiatrists
Counselors and psychological assistants
Marriage, Family and Child Counselors, registered interns and trainees
Licensed clinical social workers, interns and trainees

Others:
Clergy
Firefighters, animal control officers, humane society officers if trained in child abuse assessment and reporting
Employees of any child protective agency, including police or sheriff's departments, county probation and county welfare offices
Commercial film and photographic print processors who discover films, videos, etc., depicting children under the age of 14 engaged in sexual conduct.

Who May Report?
"Any other person who has knowledge of or observes a child whom he or she knows or reasonably suspects has been a victim of child abuse may report the known or suspected instance of child abuse to a child protective agency." [Cal. Penal Code ?11166, subd.(d).]
Conditions Necessary for Reporting
Before you must report, each of the following conditions are required:
You have knowledge of or observe a child
In your professional capacity or scope of employment
Whom you know or reasonably suspect to be a victim of child abuse.
"Reasonable suspicion" means that "... it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse.... The pregnancy of a minor does not, in and of itself, constitute a basis of reasonable suspicion of sexual abuse." [Cal. Penal Code, ?11166, subd. (a).]

When and How to Report
Mandatory child abuse reporters must do the following:
Notify a child protective agency immediately or as soon as practically possible by telephone;
AND
Prepare and send a written report within 36 hours of receiving information concerning the incident.
The "36-hour" requirement means 36 clock hours. There is no grace period for weekends or holidays. No later than 36 hours after you have received the information on which you have based your report, you must have the appropriate Department of Justice form (#SS 8572) in the mail.

When two or more mandatory reporters are present and jointly have knowledge of a known or suspected instance of child abuse, they may agree that one of them shall make the telephone report and a single report may be made and signed by the designated individual. However, if one learns that the designated individual has failed to comply, he or she must then make the report.

Reporting Duties Are Individual
No supervisor or administrator may impede or inhibit the reporting duties and no person making a report shall be subject to any sanction for making the report.

Internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established as long as they are not inconsistent with the terms of this act. The internal procedures shall not require any employee who is a mandated reporter to disclose his/her identity to the employer.

Liability for Failure to Report The mandated reporter who fails to report faces direct liability. First, failure to report can subject one to criminal charges. The penalty is up to six months in jail, a fine of not more than one thousand dollars, or by both. [Cal. Penal Code ?11172, subd. (e).] Of equal concern is that the immunity from civil liability (lawsuits!) exists only once one has fulfilled his or her reporting duty. [See Penal Code ?11172, subd. (a).]

The other risk for failing to report is that the counselor's licensing board can -- and probably will -- bring charges for unprofessional conduct for failing to report the abuse. In such instances, one's license will be subject to discipline, including suspension or revocation.

Elder Abuse
Any mandated reporter who in their professional capacity learns of physical abuse, financial abuse, isolation, abandonment, or neglect towards an elderly or dependent adult must report the abuse immediately or as practically possible. A written report must be completed within two working days.

Physical Abuse
Any physical pain or injury which is willfully inflicted upon an elder by a person who has care or custody of, or who stands in a position of trust with that elder, constitutes physical abuse. This includes, but is not limited to, direct beatings, sexual assault. unreasonable physical restraint, and prolonged deprivation of food or water.

Financial Abuse
Any theft or misuse of an elder's money or property, by a person in a position of trust with an elder, constitutes financial abuse.

Neglect
The failure of any person having the care or custody of an elder to provide that degree of care which a reasonable person in a like position would provide constitutes neglect. This includes, but is not limited to: Failure to assist in personal hygiene or the provision of clothing for an elder.

Failure to provide medical care for the physical and mental health needs of an elder. This does not include instances in which an elder refuses treatment.

Failure to protect an elder from health and safety hazards.

Self-Neglect
Failure to provide for self through inattention or dissipation. The identification of this type of case depends on assessing the elder's ability to choose a life-style versus a recent change in the elder's ability to manage.

Psychological/Emotional Abuse
The willful infliction of mental suffereing, by a person in a position of trust with an elder, constitutes psychological/emotional abuses. Examples of such abuse are: verbal assaults, threats, instilling fear, humiliation, intimidation, or isolation of an elder.

Abandonment
Abandonment constitutes the desertion or willful forsaking of an elder by any person having the care and custody of that elder, under circumstances in which a reasonable person would continue to provide care of custody.

Duty to Warn

Duty to warn refers to the responsibility of a counselor or counselor to breach confidentiality if a client or other identifiable person is in clear or imminent danger. In situations where there is clear evidence of danger to the client or other persons, the counselor must determine the degree of seriousness of the threat and notify the person in danger and others who are in a position to protect that person from harm (police).

Ewing v. Goldstein
http://www.apa.org/about/offices/ogc/amicus/ewing.pdf

In 1968 two students at the University of California at Berkley, Tatiana Tarasoff and Prosenjit Poddar, met and began casually dating. However, Poddar believed the relationship to be more serious than Tarasoff did (he thought they were engaged), and became obsessed with her when she broke it off. Poddar consequently had an emotional breakdown. Poddar went and saw a psychiatrist at a hospital in Berkeley. The psychiatrist believed Poddar had a psychotic disorder, prescribed anti-psychotic medication, and then referred him to a psychologist, Dr. Lawrence Moore, for counselling. Despite their sessions, Poddar persisted in his delusion that Tatiana would eventually love him. To prove his love, he purchased a handgun to orchestrate a life-threatening situation from which he could rescue her. Dr. Moore told him that he might have to take steps to stop him, which sent Poddar angrily from his office.

Dr. Moore discussed this with colleagues and mentioned to the campus police that Poddar was threatening to kill a girl. Officers found him and thought he appeared rational and let him go. But eventually, Poddar's delusions reached a breaking point. He went to Tatiana's house, armed with a knife and a pellet gun. She ran from him and he shot her and then stabbed her 14 times, killing her. Then he turned himself in.

He was convicted of second-degree murder and was released after serving five years. This case had an impact on the relationship of psychology to stalking and violent obsessions. Where once what was said between psycholo gist and client was totally confidential, that was about to change.

Tatiana's parents instigated a civil case of negligence against the University of California. In 1974, the California Supreme Court found that, despite confidentiality, a duty to warn exists when the psychologist determines that a warning is essential to avert a danger caused by the client's psychological problem.

Tatiana Tarasoff
The mental health profession quickly responded that such a ruling violated their "special" relationship and would also hinder clients from trusting them. Also, it is very difficult to accurately predict violence and false positive predictions would be likely (i.e. they may warn someone when they, in fact, are not in any real danger). Overall, this would be a detriment. The court then issued a second opinion. They still found that psychologists have a duty to potential victims, but they need only use "reasonable care" to protect the person. That is, the psychologist may have to voluntarily hospitalise the client to avoid the potential for harm, rather than actively warn a potential victim.

Most jurisdictions in the USA now recognize a Tarasoff-type duty, but some limit it to situations in which the client communicates a serious threat of physical violence against an identifiable victim. Standards vary from state to state in the USA. However, there is no automatic duty to warn a potential victim, and in fact, issuing a warning has proven ineffective, because more violence has been shown to result after a warning than if no warning is issued.

Professional Ethics and Suicide

The conduct of clinicians is guided by ethics codes that provide nominal protection to suicidal clients. The codes draw on these principles:
Autonomy - Respect for the individual self-determination
Doing the greatest good possible
Minimizing or preventing harm
Justice - Fairness and equal access to care.
Respect for person - The basis of client rights
Telling the truth and giving all the facts - Disclosure
Confidentiality - Maintaining client privacy
Fidelity - Doing the job" and "being there" for the client.

Ethics for Counselors
a) Do you use a waiver of confidentiality?
b) Do you use a "no suicide contract"?
c) How do you deal with psychological pain?
d) What would you do if I became suicidal while in your care?

Legal and Ethical issues - Questions and Answers

Many counselors will work their whole careers without ever being called to testify in court, but that isn't likely. Child welfare issues, divorce, abuse, neglect and other issues can land the counselor/counselor with a subpoena or court order. Here are some common legal and ethical questions asked by practitioners, but every counselor can benefit from the answers.

Q. I have been seeing this couple for several months and they have decided on a divorce. The wife wants me to testify for her in the hearing, but the husband doesn't. What should I do?
A. If you do not have prior written permission from both parties, you should refuse to testify and explain your reasons. Check your state law to ascertain your legal position. If you are subpoenaed to testify and bring your documents, show up at the specified time with all documentation and ask for the judge to rule on the issue. If the court orders you to testify, then you are legally required to do so. Legal consultation is advised for all situations involving subpoenas. To avoid both legal and ethical dilemmas, it is important to explain that as a counselor the couple or the family is considered to be your client, rather than any individual within the unit. To reduce any later confusion, this should be in writing in your disclosure form and given to your client(s) before counseling begins.

Q. I am interested in assisting the divorcing couples that I counsel in the best possible manner. I know my state law, and I think I could save them unnecessary expense by working with them on settlement, custody, and visitation issues. Is this legal?
A. Your client's best interest is always of importance to you as an ethical counselor. You may best assist your clients through mediation with their negotiation of these matters, thus allowing less time to be spent with the legal process. Remember always that giving legal advice is illegal.

Q. In my practice, I see many couples who are divorcing. When the attorney calls, what should I say? A. If you do not have prior written permission to talk with the attorney, simply state that if this person were your client, without written permission you would not be able to talk with the attorney. If the attorney persists, be polite but give no further information or indication of your relationship with the person in question.

Q. Why do attorneys "attack" counselors when they cross-examine them on the stand?
A. Whether you are called to testify in a case or choose to be a witness or child custody evaluator, it is important to understand the nature of the legal system. The legal system is an adversarial one, set up to discover the facts in a given situation. It is not based upon the assumption of furthering anyone's mental health or growth. The opposing attorney is merely "doing his or her job" in search of the facts, and none of the questions should be taken as being personal.

Q. What is the difference between a subpoena and a court order?
A. A subpoena is an order by an attorney for information or testimony. The order to appear in a subpoena must be followed. A court order is a directive by the court to comply and must be followed.

Q. Several of my colleagues have become "expert witnesses." Are there educational or training requirements for being an expert witness? How can I become one?
A. Your educational background and clinical expertise in a given area may qualify you to be an expert witness. Some states specify requirements for particular types of issues that must be met to qualify to testify. You may contact colleagues who are presently giving expert witness testimony or local attorneys in your area. Above all, if you decide to become an "expert" be sure that you have sufficient knowledge in that area.

Q. I have been requested to complete a child custody evaluation for a district court. The parents are paying for the evaluation. Whom do I represent?
A. A court-appointed child custody evaluator is responsible for representing the child and the court. The evaluator is asked to determine the best interests of the children.

Q. In my marriage and family training program I learned the technique of using paradox. However, I still feel somewhat uncomfortable with this method. Are there any legal restrictions on using paradoxical interventions? A. There are no legal restraints differing from those applying to other forms of practice. The authors caution you, however, to indicate in your disclosure statement that paradoxical interventions are part of your therapeutic technique and to be certain you are adequately trained and have sufficient facts. It may be difficult to explain harm caused to clients by asking them to do the activity that you did not want them to do. Extreme caution is advised in the use of paradoxical interventions.

Q. What do I tell my clients who are stepparents concerning their legal rights and responsibilities toward their stepchildren?
A. Stepparents in today's society have few legal rights or responsibilities toward their stepchildren. However, some states now have a provision that recognizes the "psychological/extended family of children" and may address stepparent issues. Families should check with an attorney to understand fully their rights and responsibilities.

Q. When I am seeing a couple or a family is it illegal to receive insurance reimbursement for an individual client within the family?
A. It may be considered insurance fraud to submit an individual diagnosis for third-party payment when you are actually seeing a couple or family. Report honestly to the insurance company even if the result is denial of reimbursement. Fraud could result in ethical censure and/or civil and criminal liability.

The Health Insurance Portability and Accountability Act (HIPAA)
HIPAA Overview

*****This is informational and does not constitute legal advice. Today, health plans, hospitals, pharmacies, doctors and other health care entities use a wide array of systems to process and track health care bills and other information. Hospitals and doctor's offices treat patients with many different types of health insurance and must spend time and money ensuring that each claim contains the format, codes and other details required by each insurer. Similarly, health plans spend time and money to ensure their systems can handle transactions from various health care providers and clearinghouses.

Enacted in August 1996, HIPAA included a wide array of provisions designed to make health insurance more affordable and accessible. With support from health plans, hospitals and other health care businesses, Congress included provisions in HIPAA to require The Department of Health and Human Services (HHS) to adopt national standards for certain electronic health care transactions, codes, identifiers and security. HIPAA also set a three-year deadline for Congress to enact comprehensive privacy legislation to protect medical records and other personal health information. When Congress did not enact such legislation by August 1999, HIPAA required HHS to issue health privacy regulations.

Security and privacy standards can promote higher quality care by assuring consumers that their personal health information will be protected from inappropriate uses and disclosures.

In addition, uniform national standards will save billions of dollars each year for health care businesses by lowering the costs of developing and maintaining software and reducing the time and expense needed to handle health care transactions.

What are the Standards?
The standards are being developed by the federal Department of Health and Human Services (HHS). The proposed standards involve the following:
Transactions: (Claims and encounters; Enrollment; Claim Status; Eligibility; Payment/Remittance Advice; Referral Certification; Coordination of Benefits; Premium Payment; Claim Attachment; First Report of Injury)
Code Sets: (Diseases; Injuries; Impairments; Procedures)
Unique Identifiers: (Provider; Employer; Health Plan; Individual)
Security: (Administrative Procedures; Physical safeguards; Technical Security Services; Technical Security Mechanisms)
Privacy: (Covered Information; Covered Entities; Disclosures)
PROVIDER HIPAA READINESS CHECKLIST
- GETTING STARTED

Moving toward Compliance with the Electronic Transactions and Code Sets Requirements
The Administrative Simplification Requirements of the Health Insurance Portability and Accountability Act of
1996 (HIPAA) will have a major impact on health care providers who do business electronically as well as many of their health care business partners. Many changes involve complex computer system modifications. Providers need to know how to make their practices compliant with HIPAA. The Administrative Simplification
Requirements of HIPAA consist of four parts:
1) Electronic transactions and code sets;
2) Security;
3) Unique identifiers; and
4) Privacy.


HIPAA does not require a health care provider to conduct all transactions listed under #1 electronically. Rather, if you are going to conduct any one of these business transactions electronically they will need to be done in the standard format outlined under HIPAA. Whether or not you contract a third party biller or clearinghouse to conduct any of these transactions for you, it is up to you as the health care provider to see to it that your transactions are being conducting in compliance with HIPAA. The checklist provided below is designed to help you start thinking about what you need to do to prepare for meeting the electronic transactions and code sets requirements.

1. Determine, as a health care provider if you are covered by HIPAA
If you conduct, or a third party biller or clearinghouse conducts on your behalf, any one of the following business transactions electronically you are most likely covered by HIPAA:
Claims or equivalent encounter information
Payment and Remittance Advice
Claim Status Inquiry/Response
Eligibility Inquiry/Response
Referral Authorization Inquiry/Response
If you do not conduct any one of the above transactions electronically, you are most likely not covered by HIPAA and you do not need to continue with the checklist.

2. Assign a HIPAA Point Person to handle the remaining checklist items
Assign a staff person to be your HIPAA Point Person (HPP), such as your office manager, to keep abreast of HIPAA and what is required of your office.
Give this individual the authority, resources, and time to prepare for HIPAA changes. Use this staff person to educate others in your office on the impact of HIPAA on your practice.

Compliance Schedule
In general, the law requires covered entities to come into compliance with each set of standards within two years following adoption, except for small health plans, which have three years to come into compliance. For the electronic transaction rule only, Congress in 2001 enacted legislation allowing a one-year extension for most covered entities provided that they submit a plan for achieving compliance. As a result, covered entities that qualify for the extension will have until Oct. 16, 2003 to meet the electronic transaction standards instead of the original Oct. 16, 2002 deadline. (Small health plans must still meet the Oct. 16, 2003 compliance date and are not eligible for an extension under the new law.) The legislative extension does not affect the compliance dates for the health information privacy rule, which remains April 14, 2003 for most covered entities (and April 14, 2004 for small health plans).
Relationship to State Laws
HIPAA preempts state law except:
where the state law is necessary to prevent fraud and abuse, to ensure state insurance or health plan regulation, to address controlled substances or for certain other purposes, and when state law is more stringent than HIPAA requirements.

HIPAA will have a profound impact on overall healthcare industry electronic communications and transactions. Implementation of the information security and privacy features in HIPAA will pave the way for increasingly sophisticated e-health and other healthcare e-commerce and communications applications -- as well as for new uses of evolving technologies, such as hand-held devices and wireless access. In order to realize these potential benefits -- and to ensure that official compliance deadlines are met -- healthcare organizations should begin immediately to assess their current information environment and develop strategies for HIPAA implementation.
Hipaa questions and answers
What does the HIPAA Privacy Rule do?

Most health plans and health care providers that are covered by the new Rule must comply with the new requirements by April 14, 2003. However, there have been some extensions until 10/16/03.

The HIPAA Privacy Rule for the first time creates national standards to protect individuals' medical records and other personal health information.

• It gives patients more control over their health information.
• It sets boundaries on the use and release of health records.
• It establishes appropriate safeguards that health care providers and others must achieve to protect the privacy of health information.
• It holds violators accountable, with civil and criminal penalties that can be imposed if they violate patients' privacy rights.
• And it strikes a balance when public responsibility supports disclosure of some forms of data - for example, to protect public health.

For patients - it means being able to make informed choices when seeking care and reimbursement for care based on how personal health information may be used.

• It enables patients to find out how their information may be used, and about certain disclosures of their information that have been made.
• It generally limits release of information to the minimum reasonably needed for the purpose of the disclosure.
• It generally gives patients the right to examine and obtain a copy of their own health records and request corrections.
• It empowers individuals to control certain uses and disclosures of their health information

Generally, what does the HIPAA Privacy Rule require the average provider or health plan to do? For the average health care provider or health plan, the Privacy Rule requires activities, such as:

• Notifying patients about their privacy rights and how their information can be used.
• Adopting and implementing privacy procedures for its practice, hospital, or plan.
• Training employees so that they understand the privacy procedures.
• Designating an individual to be responsible for seeing that the privacy procedures are adopted and followed.
• Securing patient records containing individually identifiable health information so that they are not readily available to those who do not need them.

Responsible health care providers and businesses already take many of the kinds of steps required by the Rule to protect patients' privacy. Covered entities of all types and sizes are required to comply with the Privacy Rule. To ease the burden of complying with the new requirements, the Privacy Rule gives needed flexibility for providers and plans to create their own privacy procedures, tailored to fit their size and needs. The scalability of the Rule provides a more efficient and appropriate means of safeguarding protected health information than would any single standard. For example,

The privacy official at a small physician practice may be the office manager, who will have other non-privacy related duties; the privacy official at a large health plan may be a full-time position, and may have the regular support and advice of a privacy staff or board.
• The training requirement may be satisfied by a small physician practice's providing each new member of the workforce with a copy of its privacy policies and documenting that new members have reviewed the policies; whereas a large health plan may provide training through live instruction, video presentations, or interactive software programs.
• The policies and procedures of small providers may be more limited under the Rule than those of a large hospital or health plan, based on the volume of health information maintained and the number of interactions with those within and outside of the health care system.

Who must comply with these new HIPAA privacy standards?

As required by Congress in HIPAA, the Privacy Rule covers:

• Health plans
• Health care clearinghouses
• Health care providers who conduct certain financial and administrative transactions electronically. These electronic transactions are those for which standards have been adopted by the Secretary under HIPAA, such as electronic billing and fund transfers.

These entities (collectively called "covered entities") are bound by the new privacy standards even if they contract with others (called "business associates") to perform some of their essential functions. The law does not give the Department of Health and Human Services (HHS) the authority to regulate other types of private businesses or public agencies through this regulation. For example, HHS does not have the authority to regulate employers, life insurance companies, or public agencies that deliver social security or welfare benefits.

What is the difference between "consent" and "authorization" under the HIPAA Privacy Rule?

The Privacy Rule permits, but does not require, a covered entity voluntarily to obtain patient consent for uses and disclosures of protected health information for treatment, payment, and health care operations. Covered entities that do so have complete discretion to design a process that best suits their needs.

By contrast, an "authorization" is required by the Privacy Rule for uses and disclosures of protected health information not otherwise allowed by the Rule. Where the Privacy Rule requires patient authorization, voluntary consent is not sufficient to permit a use or disclosure of protected health information unless it also satisfies the requirements of a valid authorization. An authorization is a detailed document that gives covered entities permission to use protected health information for specified purposes, which are generally other than treatment, payment, or health care operations, or to disclose protected health information to a third party specified by the individual. An authorization must specify a number of elements, including a description of the protected health information to be used and disclosed, the person authorized to make the use or disclosure, the person to whom the covered entity may make the disclosure, an expiration date, and, in some cases, the purpose for which the information may be used or disclosed. With limited exceptions, covered entities may not condition treatment or coverage on the individual providing an authorization.

Are health care providers required by the HIPAA Privacy Rule to post their entire notice at their facility or may they post just a brief description of the notice?

Covered health care providers that maintain an office or other physical site where they provide health care directly to individuals are required to post their entire notice at the facility in a clear and prominent location. The Privacy Rule, however, does not prescribe any specific format for the posted notice, just that it include the same information that is distributed directly to the individual. Covered health care providers have discretion to design the posted notice in a manner that works best for their facility, which may be to simply post a copy of the pages of the notice that is provided directly to individuals.

Sanctions and Penalties
Penalties established for non-compliance with HIPAA's requirements are: Personal liability: individuals may be liable for up to 10 years in prison and $250,000 in fines for intentional misuse of protected health information Organizational liability: Healthcare organizations are liable for up to $25,000 in fines for each standard violated

Monetary Penalty	Imprisonment Penalty	HIPAA Offense
$100	N/A	Single violation of a provision
Up to $25,000	N/A	Multiple violations of an identical requirement or prohibition made during a calendar year
Up to $50,000	Up to one year	Wrongful disclosure of individually identifiable health information
Up to $100,000	Up to five years	Wrongful disclosure of individually identifiable health information committed under false pretenses
Up to $250,00	Up to ten years	Wrongful disclosure of individually identifiable health information committed under false pretenses with intent to sell, transfer, or use for commercial advantage, personal gain, or malicious

The next article is from the APA magazine, The Monitor. It directs most of its laws and ethics towards Psychologists, but it gives examples that all social workers can find helpful.

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