Law and Ethics

Ethical Principles

What are Professional Ethics?

Professional ethics serve to prevent the needs and desires of the professional from interfering with the welfare of the client. They are abstract principles and concrete guidelines that serve to protect the public.

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) Society also benefits from mental health service utilization, which is improved when the public trusts the services.

Confidentiality is an aspect of informed consent. Privacy policies should be a part of initial materials provided to the client.

Authorized Release of Information

Generally, the client must consent to releasing their private information before the therapist may do so. 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.

How to Respond to Requests for Information

When there is a request of an unauthorized release, the therapist can state: "I can neither confirm nor deny that this individual is or has ever been my client."

Privilege and the Duty to Assert It

Privilege is a legal term referring to the privilege to assert the right to privacy. The client is normally the one that holds the privilege.

Confidentiality is a "duty" imposed upon the therapist by law. When two duties are in conflict (as occurs if there is a subpoena to release information against the client's will), the therapist must assert that one of these duties is more important than the other. When the therapist asserts that the privacy of privileged information is more important, this is called asserting privilege. If the court issues an order requiring the release despite this, then the therapist will not be held liable for releasing the information, because otherwise he or she would face penalties.

Privilege is durable, extending after death.

Even when privacy has already been breached, that breach does not persist beyond that single instance. Each additional or repeated sharing of information must have it's own legal justification.

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.

HIPAA

The Health Information Portability and Accountability Act (HIPAA) was created to protect private health information such as medical records. It sets a "floor" that allows state law to add additional requirements, but not relax the reqirements of HIPAA.

Of special interest are the regulations regarding psychotherapy notes and on how treatment-related information can be used without separate releases.

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

Couples, Families, and Groups

Family therapy literature often treats the family or couple as a client, but this does not diminish the rights of any individual in the group. Individuals hold privilege, regardless of the desires of the therapist or family members. Thus, records cannot be released unless all participants authorize the release. However, a summary that excludes reference to those not authorizing the release can be prepared. Couples must understand that the therapist will not hold a secret. (Leslie, 2006c)

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.

Minors, Confidentiality, and Consent

Involvement of family members in treatment of a minor must be weighed against the minor's privacy. (Gudeman, 2006) 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.

Some of the following may vary from state to state:

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. 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, the therapist should get permission from both parents. It is important not to interfere with the rights of a custodial parent. (Leslie, 2007) If there is uncertainty regarding custody, the therapist can review the court order regarding medical or mental health care decisions.

Once treatment has commenced, one of the custodial parents may wish to withdraw permission to treat. The therapist can inform the parent that the permission of both was required to commence treatment and will ne necessary to terminate it. (Leslie, 2005b)

States generally have laws allowing minors to consent to their own treatment when there is a threat of harm should they not receive treatment. State law may indicate at what age a minor can provide their own consent for treatment for sexual assault.

Death of patient

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

Exceptions to Confidentiality

Overview

State law specifies the criteria for breaching confidentiality, mandatory reporting requirements of therapists, and the responsibilities of authorities in these matters in which confidentiality may (or must) be breached:

1. Threat of harm to self or others, including the duty to protect an intended victim of a client. The latter is referred to as a Tarasoff situation, referring to an early case addressing this. (Berger & Berger, 2009; Tarasoff v. Regents of the University of California) The therapist is not expected by the law to predict violence in the absence of credible information. (Brady v. Hopper, 1983) If criteria are met, authorities may detain an individual for evaluation specified period of time. If additional criteria are met, the individual may be held for treatment.
   
   
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. Reasonable suspicion of abuse or neglect of a minor, elder, or dependent adult (meaning that the therapist has sufficient reason to suspect that it has occurred, but is not required to prove that it has ocurred). Reporting is mandatory. Allegations lacking credibility need not be reported, as in the case of a demented person with a history of false accusations. Abuse can include emotional abuse, especially when it is sufficient to impact mental health or development. 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. The mental health professional must provide only the information necessary to fulfill the purpose of the disclosure.

Boundaries
Introduction

The term "boundary" has to do with our rights, dignity, and needs. Our boundaries are the limits of what is and is not appropriate in one person's actions toward another. (Gutheil & Gabbard, 1998) Boundary issues constitute a high proportion of malpractice claims. (Norris, Gutheil, & Strasburger, 2003)

Detecting Potential Boundary Issues

Since most boundary issues happen in therapist's "blind spots," it is an important area for consultation whenever there is any sense of ethical uncertainty. Relatively small boundary violations tend to precede larger ones. 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)

Red flags are circumstances, thoughts, or feelings that constitute heightened risk of boundary violations. Examples follow:

A dual relationship, in which the therapist has an additional relationship with the client (personal or business). Therapists in smaller communities are typically more liberal about having dual relationships, out of necessity, but within reason. (Simon & Williams, 1999)

Financial misunderstanding or conflict (a major cause of legal action and complaints). (Bernstein, & Hartsell, Jr., 2004, p. 22)

Excessive self-disclosure (a form of self-gratification at the expense of the client).

Directing blame or responsibility for boundary issues to the client (deflection of responsibility, rationalization). (Pope & Vasquez, 1998)

Making unusual exceptions to policies or fees.

The desire to change the client's opinions, morality, or personal choices.

Unprofessional responses to provacative client behaviors such as the client expressing attraction to the therapist or missing appointments.
Becoming preoccupied by the desire for non-professional or potentially romantic contact.

Unmet personal needs that may cloud the therapist's judgment.

Requesting a testimonial (testimonials may expose clients to unnecessary stigma).

Being vague about when to terminate therapy. (Bisbing, Jorgenson, & Sutherland, 1995) The profit motive must not outweigh the independence of the client.

Sex with Clients, Supervisees, and Students

A Major Boundaries Issue

Sex between therapist and client is considered malpractice and is subject to substantial penalties, loss of license, civil liability, and imprisonment in some jurisdictions. 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. (Sanderson, 1989) Continuing therapy after sex compounds the problem. Sexual intercourse, sexual contact or sexual intimacy and/or harassment of any kind with students or supervisees is unethical.

Harm

Many studies have shown high rates of bad outcomes for clients that have experienced sexual misconduct by psychotherapists. (Pope, 1989; Feldman-Summers & Jones, 1984) A number of factors appear contribute to harm, such as personality characteristics and clouded judgement of the therapist. (Williams, 1992) In addition, people who experience or learn of therapist misconduct are less likely to get mental health services when they need them.

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."

Record-Keeping and Documentation

Maximizing Client Benefit, Minimizing Legal Risk

Clinical and administrative records must be detailed enough to ensure effective treatment, manage administrative processes, and minimize liability. They must document a thorough assessment and a defensible clinical rationale for the treatment plan. They must show ongoing relevance as the case unfolds. Components such as informed consent, policies, and clinician disclosure must be in place. State and federal law affect the contents of the record.

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 and Security

HIPAA requires a minimum six-year period of record retention, and specifies that record destruction must ensure that privacy is preserved. Laws generally begin the retention time period from termination of treatment or the time that the client reaches the age of 18, whichever is later. All organizations and practices should adhere to well-designed security policies to protect data. (Jensen, 2008)

Policies and agreements must be in place pertaining to potential incapacity on the part of the therapist. This should include a professional will that addressees handling of records. (Hollowly, 2003)

Additional Guidelines

Informed Consent

Informed consent means that the client adequately understands and agrees with the treatment plan. Clients that are not competent to make such decisions need to have a guardian or appropriate caretaker be involved in treatment planning whenever possible. Prior to treatment, the therapist is required to provide verbal and written disclosure concerning his or her qualifications, methods, and policies.

Evidence-Based Practice

The demand for evidence-based approaches reflects the increasing availability of research, our increasing biological understanding of mental health issues, and increasing accountability. This requires maintaining current knowledge of mental health related research and insights. (Stout & Hayes, 2005)

Assessment and Treatment Planning

Ethical and legal standards call for complete assessment and treatment planning . 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) 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.

It is a standard of care that clinicians devise treatment plans that flow from the assessment. 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.

Scope of Practice and Competence
Scope of practice refers to the limits of an individual therapist's license, training and experience, and personal capacities. It is both an ethical and legal requirement to operate within scope of practice in order to avoid malpractice.
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.

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. The therapist should provide written notice of any planned changes in fees or policies. Clients going through insurance should understand that they are responsible for the bill.

Bartering can be problematic. 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.

Regarding sliding scale fees, 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. A way to prevent this is to have a standard fee schedule, and adjust downward from that in applying the sliding scale. (Leslie, 2006)

Therapists may not accept or offer payment for referrals.

Where to go From Here

It never hurts to review the fundamentals. 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 handy as well.

Citations

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

Griswold v. Connecticut, 381 U.S. 479. Retrieved from http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZC.html

Articles, Books and Reports

Alban, A. (2007). Informed consent (part 1): Its origins and development. Clinical Lawyer. May 3. Retrieved on 12/7/2007 http://clinicallawyer.com/files/2007/05/03/informed-consent-part-1-its-not-just-a-piece-of-paper/.

American Psychological Association. (2009a). APA Ethics Committee Statement - No Defense to Torture. Accessed 8/18/2010. http://www.apa.org/ethics/programs/statement/torture-code.aspx

American Psychological Association. (2009b). Ethical Principles of Psychologists and Code of Conduct: 2010 Amendments. Accessed 8/18/2010. http://www.apa.org/ethics/code/index.aspx?item=15

American Psychological Association. (2007). Record Keeping Guidelines. Retrieved 12/3/2007 http://www.apa.org/practice/recordkeeping.html.

Berger, S. E. & Berger, M. A. (2009). Tarasoff "duty to warn" clarified. The National Psychologist 18(2). Retrieved May 19, 2009, from http://www.nationalpsychologist.com/articles/art_v18n2_3.htm

Bernstein, B. E., Hartsell, Jr., T. L. (2004).The portable lawyer for mental health professionals: An a - z guide to protecting your clients, your practice, and yourself, 2nd edition. Wiley.

Bisbing, S. B., Jorgenson, L. M. & Sutherland, P. K. (1995 & Cum. Supp. 2000). Sexual abuse by professionals: A legal guide. ? 12-5 (c), 470-80. Charlottesville: Mitchie.

Feldman-Summers, S. & Jones, G. (1984). Psychological impacts of sexual contact between therapists or other health care practitioners and their clients. J. Counseling and Clinical Psychology. 1054.

Gudeman, R. (2006). Minor consent, confidentiality, and child abuse reporting in California. National Center for Youth Law.

Gutheil, T. G., Gabbard, G. O. (1998). Misuses and misunderstandings of boundary theory in clinical and regulatory settings. Am J Psychiatry 155, 409-414.
Holloway, J. W. (2003). Professional will: A responsible thing to do. APA Monitor, 34(2). Retrieved December 3, 2007, from http://www.apa.org/monitor/feb03/will.html.

Jorgenson, L. and Sutherland, P. K. (1993). Liability of physicians, therapists and other health professionals for sexual misconduct with patients. In Medical liability issues for lawyers, physicians, and insurers current trends and future directions A-117, tort and insurance practice, secodn ed. Retrieved December, 16, 2007, from http://www.advocateweb.org/HOPE/litigation/liability.asp.

Kuniholm, E. F. & Church, K. (2002). Psychotherapist Malpractice. Kuniholm Law Firm.

Jorgenson, L. and Sutherland, P. (1993), Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct with Patients, in Medical liability issues for lawyers, physicians, and insurers: Current trends and future directions in Tort and insurance practice, second ed.

Kardener, S. H., Fuller, M. & Mensh, I. N. (1973). A survey of physicians' attitudes & practices regarding erotic and nonerotic contact with patients. Am. J. Psychiatry, 1070.

Kuniholm, E. F., & Church, K. (2002). Psychotherapist malpractice. Kuniholm Law Firm. Adapted from ATLA: Litigating Tort Cases, Ch. 55 "Sexual Abuse." West and ATLA, 2003.

Leslie, R. S. (2007). Consent to treat minor (sole and joint legal custody). March Vol. 1. Retrieved 12/28/2007 http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/86/sid/26/Default.aspx

Leslie, R. S. (2006). Fees - the sliding fee scale. The Bulletin Archive, Aug. Vol. 1.

Leslie, R. S. (2006b). Confidentiality - couple being treated. Bulletin Archive, Apr. Vol. 1.

Leslie, R. S. (2006c). Confidentiality - "No secrets" policy (couple being treated). Bulletin Archive. Apr. Vol. 1.

Leslie, R. S. (2005). Confidentiality - group therapy. Bulletin Archive. July Vol. 1.

Leslie, R. S. (2005b). Termination of Treatment. Bulletin Archive. June Vol. 1. Retrieved December 28, 2007, from http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/11/sid/79/Default.aspx

Martinez, A. Director, Mental Health Licensing Board, State of Colorado. (1999). Personal communication.

Norris, D. M., Gutheil, T. G., & Strasburger, L. H. (2003). This couldn't happen to me: Boundary problems and sexual misconduct in the psychotherapy relationship. Psychiatric Serv, 54, 517-22.

Pope, K. S. & Bouhoutsos, J. C. (1986). Sexual intimacy between therapists and patients. Praeger.

Pope, K. S. & Vasquez, J. T. (2007). Ethics in psychotherapy and counseling: A practical guide, 3rd ed. San Francisco: Jossey-Bass, 2007.

Pope, K. (2001). Sex Between Therapists and Clients, in Worell, J. Encyclopedia of Women and Gender: Sex Similarities and Differences and the Impact of Society on Gender (pp. 955-962; vol. 2). Academic Press.

Schover, L. R., Levenson, H., and Pope, K. S. (2006). Sexual relationships in psychology training: A brief comment on ethical guidelines and coping strategies. Psychology of Women Quarterly, 7(3), 282-285. doi: 10.1111/j.1471-6402.1983.tb00841.x

Pope, K. S. Developing and practicing ethics. In Prinstein, M. J., Patterson, M., eds. (2003). The portable mentor: Expert guide to a successful career in psychology. New York: Springer. Retrieved December 2, 2007 from, htttp://www.kspope.com/ethics/ethical.phpu

Pope, K. S. (2001). Sex between therapists and clients. In Worell, J., ed. (2001). Encyclopedia of women and gender: Sex similarities and differences and the impact of society on gender. Academic Press.

Pope, K. S. & Vasquez, J. T. (1998). Ethics in psychotherapy and counseling: A practical guide, 2nd Ed. San Francisco: Jossey-Bass, 1998.

Pope, K. S., Vetter, V. A. (1992). Ethical dilemmas encountered by members of the American Psychological Association: A national survey. American Psychologist, 47(3), 397-411.

Pope, K. S. (1990). Therapist-patient sexual involvement: A review of the research. Clinical Psychology Review, 10(4), 477-490. doi:10.1016/0272-7358(90)90049-G

Pope, K. S. (1989). Therapist-patient sex syndrome: A guide for attorneys, in sexual exploitation in professional relationships. In Gabbard, G. O. (Ed.), Sexual exploitation in professional relationships (pp. 39-55). Washington, DC: American Psychiatric Press.

Pope, K. S. (1989b). Therapist-Patient Sex as Sex Abuse: Six Scientific, Professional, and Practical Dilemmas in Addressing Victimization and Rehabilitation. Washington, DC: American Psychiatric Press.

Pope, K. S. (1988). How clients are harmed by sexual contact with mental health professionals: The syndrome and its prevalence. J. Counseling Dev., 67, 222.
Pope, K. S., Tabachnick, B. G. & Keith-Spiegel, P. (1987). Ethics of practice: The beliefs and behaviors of psychologists as therapists. American Psychologist, 42(11), 993-1006. Retrieved December 2, 2007 from, http://www.kspope.com/ethics/research4.php

Pope, K. S. (1986). Sexual attraction to clients: The human therapist and the (sometimes) inhuman training system. American Psychologist, 41(2), 147-158. citing Durre, L. (1980). Comparing romantic and therapeutic relationships. Retrieved December 1, 2007, from, http://www.kspope.com/sexiss/research5.php

Pope, K. S. (1986b). Sexual attraction to clients: The human therapist and the (sometimes) inhuman training system. American Psychologist, 41(2), 147-158. Retrieved December 1, 2007 from, http://www.kspope.com/sexiss/research5.php citing Bouhoutsos, J., Holroyd, J., Lerman, H., Forer, B. & Greenberg, M. (1983). Sexual intimacy between psychotherapists and patients. Prof. Psychology, 14, 185-96.

Pope, K. S. (1986c). Sexual intimacy between therapists and patients. Praeger.

Sanderson, B., ed. (1989). It's never o.k.: A handbook for professionals on sexual exploitation by therapists and therapists. The State Task Force on Sexual Exploitation by Therapists and Therapists.

Sharkin, B. (1995). Strains on confidentiality in college-student psychotherapy: Entangled therapeutic relationships, incidental encounters, and third-party inquiries. Prof. Psychol., Research & Pract., 16, 184-189.

Simon, R. I. and Williams, I. C. (1999). Maintaining treatment boundaries in small communities and rural areas. Psychiatr Serv 50:1440-1446, Nov. American Psychiatric Association.
Spiegel, A. (2004). The dictionary of disorder. The New Yorker, Jan.

Stout, C. E., and Hayes, R. A. (2005). The Evidence-Based Practice: Methods, Models, and Tools for Mental Health Professionals. John Wiley and Sons, 2005, pp. 244-245.

Tarasoff v. Regents of the University of California. 17 (Cal.3d 425 1976).
US Department of Health and Human Services. (1999). Confidentiality of mental health information: Ethical, legal, and policy issues. In Mental health: A report of the surgeon general. , Chapter 7. Rockville, Md: US Dept of Health and Human Services. Retrieved: 12/7/2007.

Williams, M. H. (1992). Exploitation and inference: Mapping the damage from therapist-patient sexual involvement. American Psychologist, 47(3), 412-421. Retrieved 11/1/2007 http://drmwilliams.com/SAdocs/exploit.html.

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