TARASOFF, SUICIDALITY AND ABUSE: SOCIAL WORK ETHICAL DILEMMAS

by Pamela H Harmell, Ph.D..


6 Credit Hours - $99
Last revised: 11/07/2011

Course content © Copyright 2010 - 2026 by Pamela H Harmell, Ph.D.. All rights reserved.



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Course Outline

 

Section A. Introduction and Review
Section B. Privacy, Confidentiality and Privilege
Section C. Informed Consent
Section D. Fees and Financial Arrangements
Section E. Counter-Transference
Section F. Child Abuse Reporting

Section G. Elder Abuse Reporting

Section H. Treatment Termination

 

 

LEARNING OBJECTIVES

 

 

This is a beginning to intermediate level course. After completing this course, social workers will be able to:

 

     Explain the steps to take with a dangerous client, based on mandated reporting laws of Tarasoff and Ewing

 

     Use the 'SAD PERSONS' assessment tool to assess risk of suicide

 

     Describe five common boundary challenges for therapists and how to handle them, based on professional values, attitudes, and beliefs

 

     Address social injustice through recognizing the signs of elder abuse

 

     Discuss professional behavior related to one current issue of confidentiality, privilege, HIPPA, record keeping, or avoidance of fraudulent billing practices

 

 

AUTHOR DISCLAIMER

 

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

 

In all cases, the authors cited are accepted and published experts in the field of legal and ethical issues in psychotherapy; however some of the seminal papers and books are also used to discuss the foundation of the topics being discussed.  Cited herein are current opinions, case law when applicable, California statute as examples of state statutes, and interpretations of the National Association of Social Workers (NASW) Code of Ethics (THE NASW CODE OF ETHICS), approved in 1996 and revised in 2008. When discussing situations that are strictly clinical or more pertinent to ethics codes related to clinical issues, the Clinical Social Work Association (CSWA) Code of Ethics (THE CSWA CODE OF ETHICS), approved in 1997 and reviewed in 2006, is used in this course. You will find the websites and codes at the links. 

 

The changes to the 2008 NASW Code of Ethics were made to the following sections as indicated below:

 

Standard 1.05(c) – Cultural Competence and Social Diversity

Standard 2.01(a) – Respect

Standard 4.02 – Discrimination

Standard 6.04(d) – Social Action

 

Each of these standards sets down guidelines for dealing fairly and appropriately with the segment of the population that may have been typically discriminated against (i.e. sexual orientation, age, gender, color, religion, etc.).  These four Standards have included the words “immigration status” to their text.  In other words, in dealings with various populations, social workers respect the integrity and dignity of the immigration status of those with which they work.

 

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

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

 

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

 

Section A: INTRODUCTION TO COURSE

 

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

 

From time to time in this course, you will be given brief quizzes that are aimed at helping you learn and retain the material (“Question for Reflection”). References for material will be given throughout the text, with a reference list at the end of the course. 

 

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

 

Statement of mission and values in social work. According to The Preamble to the Code of Ethics of NASW:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Scope of Practice and Scope of Competence

 

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

 

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

 

Brief introduction to the law.  Our American system of law is separated into two divisions, Federal law and State law. In most cases, Federal law supersedes State law except in special situations. Can you think of one?

 

 

Question for Reflection

 

 

Federal law is superseded by state law:

 

a)   When someone who is not a U.S. citizen commits a felony

b)   In some cases where murder is the crime

c)   With HIPAA, when state law gives more protection to patient’s records

 

If you guessed (c), you are correct! With HIPAA laws, which are federal laws (which will be discussed in another section), state law supersedes federal law if the state law provides more protection for the patient’s records and to the patient in general. You may wish to record your answer for future review.

 

 

INTRODUCTION TO BOTH SOCIAL WORK ETHICS CODES

 

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

 

     Preamble.  Summarizes mission and core values.

     Purpose of NASW Code – Overview of functions of the code.

     Ethical Principles – Six specific core values to be followed.

     Ethical Standards – Six major numbered code sections (51 specific standards)

 

The six major code sections including the Ethical Standards are as follows:

 

1.   Social Workers’ Ethical Responsibility to Clients - 16 Standards covering  everything from informed consent to sexual exploitation

2.   Social Workers’ Ethical Responsibilities to Colleagues - 11 Standards covering everything from confidentiality to incompetence

3.   Social Workers’ Ethical Responsibilities in Private Practice - 10 Standards covering everything from supervision to record-keeping

4.   Social Workers’ Ethical Responsibilities as Professionals - 8 Standards covering everything from competence to soliciting patients

5.   Social Workers’ Ethical Responsibilities to the SW Profession - 2 Standards covering integrity of profession and evaluation of research

6.   Social Workers’ Ethical Responsibilities to the Broader Society - 4 Standards covering public emergencies to political action

 

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

 

In all cases, the authors cited are accepted and published experts in the field of legal and ethical issues in psychotherapy; however some of the seminal papers and books are also used to discuss the foundation of the topics being discussed.  Cited herein are current opinions, case law when applicable, California statute as examples of state statutes, and interpretations of the National Association of Social Workers (NASW) Code of Ethics, approved in 1996 and revised in 2008. When discussing situations that are strictly clinical or more pertinent to ethics codes related to clinical issues, the Clinical Social Work Association (CSWA) Code of Ethics, approved in 1997 and reviewed in 2006, is used in this course. You will find the website below for downloading or linking to both of these ethics codes.

 

In the Preamble of this document, CSWA states:

 

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

 

The Code of Ethics of the CSWF are specific to clinical social work and will be quoted when relevant in this course.  The following describes the content of the CSWF Code of Ethics in more detail:

 

Preamble

Explanation of objective of social work

I.   General Responsibilities of Clinical Social Workers

A-D CSW  maintain high standards

II.  Responsibility to Clients

1.  Informed Consent to Treatment

2.  Practice Mgmt & Termination

3.  Relationships with Clients

4.  Competence

III.  Confidentiality

A-E  CSW maintain confidentiality

IV.  Relationship with Colleagues

A-E  CSW act with integrity

V.  Fee Arrangements

A-E  CSW maintain honesty re fees

VI. CSW Are Responsible to the Community

A-C  CSW practice their profession within legal boundaries

VII. Research & Scholarly Activities

A-K  CSW maintain ethical practices in research and teaching

VIII. Public Statements

A-E Public statements are always honest and truthful

 

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

 

     To prevent government intrusion

     To aid professional autonomy

     To avoid undue interference from outside parties

     To assert self regulation

     To protect the profession from internal discord

 

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

 

 

Questions for Reflection

 

 

The NASW and CSWA ethics codes are legal documents:

 

a)   TRUE

b)   FALSE

 

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

 

a)   TRUE

b)   FALSE

 

The first question of course is false (b), as mentioned earlier the document is NOT to be used as a legal document, but as a guideline and set of standards.  The second question is false (b) as explained earlier as well.

 

 

THE ELEMENTS OF MALPRACTICE

 

There are four elements of a civil suit for malpractice. All four have to be believed to be satisfied in a court of law. In some cases, the difficulties of attempting to prove a civil suit, or defending against a complaint, are reflected in an out-of-court settlement. Sometimes the malpractice carrier advises that the expense—both emotionally and financially—is not worth the risk of going to court for the plaintiff.

 

A civil suit for malpractice is defined as “a lawsuit between two citizens where the issue is whether the psychotherapist has breached the standard of care.” (Black’s Law Dictionary, 1996) “Standard of care” will be defined below.

 

Duty of care. A Duty of Care arises when there has been an agreement between the psychotherapist and a current client that the pair will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because, after two or three sessions, a patient does begin to develop an assumption that he has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for consideration of longer-term therapy? Is the work being done merely as an evaluation using assessment instruments? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavioral model of treatment? If a civil suit should occur, and the parties had not decided whether they wished to work together by the third session or so, the court may decide for them that a “duty of care” had been established. Exchange of money alone does not establish a duty of care; however, if there is nothing else for the court to consider, it may look at any financial matters in an attempt to establish responsibility.

 

Standard of care. This broad term refers to the level of proficiency against which any other psychotherapist’s work will be measured or compared. In other words, what any other trained psychotherapist would do with reasonable experience. This is also known as the minimum below which a psychotherapist must not fall (Stromberg, et al., 988; Caudill & Pope, 1994).

 

Generally, the standard of care is defined by state statute (e.g., California Penal Code 11166, child abuse reporting law; California Welfare and Institutions Code 5150, involuntary hospitalization) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a “collection of reported cases that form the body of jurisprudence within a given jurisdiction.” (Black’s Law Dictionary, 1996, p. 84) This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and must be followed just as closely as law that has progressed through the traditional legislative process.

Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest.” (p. 564) This is generally known as the “reasonable therapist doctrine.” These authors go on to explain that competent treatment can lead to unsuccessful results without meaning that the treatment was negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used, a judgment call that proves wrong is not actionable.” (p. 564)

 

Demonstrable harm. Can hurt or harm be shown to have occurred to the “victim”? If so, what are her damages? The idea is to return a harmed individual (client or patient) to the condition in which the person existed prior to the harm. This is done in only one possible way in a civil suit—a monetary judgment. In many cases of demonstrable harm with psychotherapist defendants, the damage claimed is psychological in nature. Therefore, it is much harder to prove and harder to approximate the financial award.

 

Proximate cause. Proving that the psychotherapist’s wrongful conduct caused the damage, and that it was the direct or proximate cause of the harm of the plaintiff’s injury, is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychotherapist for his acts that “caused” the damage to the client. The question is—Would the client have been damaged if the psychotherapist had done anything differently? Where injury is alleged to occur, the client must still prove that the alleged injury is caused by the psychotherapist’s breach of the standard of care. In 1991, the California Supreme Court adopted a definition of proximate cause easily understandable to lay people—the “substantial factor” element. Was the therapist’s action a “substantial factor” in causing the patient’s injury? (Caudill & Pope, 1995)

 

 

Case Example

 

 

Jenny has seen Therapist Brown as a client for five months. She calls Brown saying she is suicidal and wants to “do herself in.” Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks, and to “get social and meet a new lover” so that she can have a good time and “be normal.”

 

Later, Jenny feels so bad she takes the entire bottle of her antidepressants and a bottle of vodka in a suicide attempt. When she is feeling suicidal and depressed the next day and calls Therapist Brown, he tells her, “Look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now just relax.”

 

Jenny takes the rest of her medication and winds up in the hospital. Her family consults an attorney who is considering filing suit based upon the four elements of a malpractice suit.

 

 

Questions for Reflection: The Case of Jenny

 

 

Since Jenny and Therapist Brown had been seeing each other in a therapeutic relationship, the first element of a malpractice suit has been met because there was:

 

a)   Duty of Care established

b)   A Breach of the Standard of Care

c)   Demonstrable Harm evident

d)   Proximate Cause shown

 

Therapist Brown was probably not adhering to the current Code of Ethics for LCSWs, the statutes of his state, or the recent case law. Therefore, he probably:

 

a)   Did not create a Duty of Care

b)   Breached the Standard of Care

c)   Displayed Demonstrable Harm

d)   Provided Proximate Cause

 

Since Jenny wound up in the hospital after talking with Therapist Brown, this probably is evidence of:

 

a)   Duty of Care

b)   Breach of Standard of Care

c)   Demonstrable Harm

d)   Proximate Cause

 

If Jenny would have been fine had Brown treated her in a more appropriate manner, this could be used as proof of:

 

a)   Duty of Care

b)   Breach of Standard of Care

c)   Demonstrable Harm

d)   Proximate Cause

 

Answers in order:

 

Question (1) answer is (a) – Duty of care is established when a client-therapist relationship is developed or created.

 

Question (2) answer is (b) - When Therapist Brown failed to follow the ethics code of his profession, he was breaching the standard of care of his profession.

 

Question (3) answer is (c) – demonstrable harm; since his patient wound up in the hospital, harm could be demonstrated.

 

Question (4) answer is (d) - If it could be proven, which is very difficult to do, that the patient would not have suffered damages (or they would not have been as serious), had Therapist Brown done anything differently, then proximate cause can be claimed by the attorney of the patient.

 

 

Methods of Preventing Malpractice

 

Experts in legal and ethical matters agree on methods of minimizing the risk of a malpractice suit (Caudill & Pope, 1995; Welfel, 2010; Clayton & Bongar, 1994; VandeCreek & Knapp, 2000; Cranston et al., 1988):

 

·         Professional consultation (discussed later)

·         Personal therapy

·         Membership in professional associations

·         Continuing education

·         Familiarity with current treatment methods and monthly journals

·         Knowledge of current standard of care

·         Proper referrals (e.g., hospitalization, medication, adjunctive treatment)

·         Proper documentation of patient care

·         Formulation of a reasonable treatment plan

 

INTRODUCTION TO ACCOUNTABILITY

 

There are four mechanisms holding psychotherapists accountable for our actions as mental health professionals. A brief description of each follows:

 

State licensing boards.  A state licensing board is the agency that “giveth and taketh away” the ability to practice psychology. It decides how many hours of continuing education must be taken to renew the license and continue practicing, it regulates penalties for improper practice behaviors, and it can take action if a psychotherapist fails to respond to its dictates.

 

Ethics committees.  This second mechanism sets guidelines of practice that are considered the standard of care in the profession. It can also take sanctions against the psychotherapist for improper behavior.

 

Civil suit for malpractice.  Mechanism 3 is a generally unpleasant factor of American society – when one citizen takes civil action against another citizen. In a civil suit, the only thing being claimed is financial damages, and the only remedy is money. However, punitive damages are also a possibility where the court awards extra financial damages as punishment in a particularly egregious situation. A psychotherapist does not want to be confronted by this element of accountability, as it is generally grindingly slow and complex, not to mention painfully expensive.

 

Criminal allegations (Attorney General Involvement).  Criminal allegations are the least likely of the four mechanisms holding a psychotherapist accountable for practice behavior. If there is an unfortunate outcome where the state attorney general goes after a psychotherapist’s license and prosecutes for criminal allegations, the psychotherapist who is found guilty can find herself spending time in a jail cell.

 

SECTION B: PRIVACY, CONFIDENTIALITY & PRIVILEGE

 

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

 

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

 

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

 

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

 

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

 

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

 

Many states have laws to address special circumstances including when the patient is a minor, is incapacitated, or is unable to hold his or her own privilege (See (Black’s Law Dictionary, 1996):

 

Patient holds privilege – This refers to the primary patient

Notice “parent” is not mentioned anywhere here (This will be discussed in the section on minors)

 

Guardian holds privilege – One who has legal authority for incapacitated person (p. 282)

 

Conservator holds privilege – Appointed by court for incapacitated person (p. 127)

 

Personal representative – In the case of patient death
One who manages legal affairs because of incapacity or death (p. 541)

 

Exceptions to Confidentiality

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

7. Mandatory Reporting Statutes.  As discussed in number three above, an exception to confidentiality exists with regard to danger to self or others.

 

 

Questions for Reflection

 

 

You receive a subpoena for the records of Jane Doe, a current patient. In order to release the records, you need a release from Jane for the records. This falls within the area of:

 

a)   Privacy

b)   Confidentiality

c)   Privilege

 

LaTesha is the sister of your deceased client. LaTesha calls you wanting her sister’s records, and says she has sent you a self-addressed envelope in which you are to mail her sister’s records to her. She would appreciate you sending them as quickly as possible for her own personal reasons. Can you release the records to LaTesha’s sister? Why or why not?

 

a)   Yes, because the sister is the current holder of privilege

b)   Yes, because you are the current holder of privilege and you can release

c)   No, because the court has to decide who is holder of privilege

d)   No, because the personal representative is the holder of privilege

 

For Question 1, (c) is best answer, as subpoenas are related to the release of legal documents. Even though a subpoena does not have the power of a court order, it still must be attended to, and it involves the element of privilege.

 

Question 2 is a bit more complicated, as the best answer is (d), personal representative. However, if there is no personal representative of record, the court will decide or appoint one; therefore, (c) could be a viable answer in some cases where there is no personal representative in the will of the deceased.

 

 

Social Work Ethics Codes that apply to Confidentiality

 

NASW Code of Ethics

 

Standard 1.07(a-r) – Privacy and Confidentiality

 

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

 

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

       

CSWA Code of Ethics

 

Standard III(b,c,e) – Confidentiality

 

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

 

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

 

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

 

INTRODUCTION TO DANGEROUSNESS

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Currently, all states have enacted some version of the original Tarasoff ruling that was codified in California’s Civil Code in 1985. The California Appellate court made a new interpretation of Tarasoff in 2004, which will be discussed later. For now, it is important to understand the original ruling by the Supreme Court Justices. Remember, however, that each social worker has the responsibility of discerning the Tarasoff statutes and case law in his or her own state. (See Harmell, 1997, The Stab Felt Round the World: What you Need to Know about Tarasoff for a detailed review.) This famous Supreme Court case law ruling in California (1976) regarding the Tarasoff case was codified in 1985 as follows:

 

 

Original Tarasoff Issues as of 1985

 

 

Communicated to psychotherapist directly by patient

 

     The threat must come directly from the patient to the psychotherapist unless it is an incapacitated patient or a minor patient

 

     Ewing v Goldstein, the update to Tarasoff in California, will be discussed later in this section

 

Serious threat of physical harm that is imminent

 

     A proper dangerousness assessment must be used for evaluation

 

This will be discussed later in this section

 

Reasonably identifiable victim

 

     The justices said if the psychotherapist can determine who the potential victim is “with a moment’s reflection” then the third determinant of Tarasoff is met

 

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

 

 

 

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

 

 

Tarasoff Action Issues

 

 

Warn potential victim(s)

 

     Once again, “with a moment’s reflection”

 

Notify authorities

 

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

 

Not codified, yet clear in the Tarasoff decision of 1976:

 

     Take Steps to prevent the threatened danger (Stromberg et al., 1988)

 

o   Increase frequency of sessions

o   Send for medication evaluation

o   Send for anger management

o   Adjunctive treatment (group, couple, etc.)

o   Involve support system

o   Increase phone contact with patient

o   Contract with patient

o   Hospitalization

 

 

The Tarasoff Supreme Court Justices did not enumerate the above steps and, in fact, stated psychotherapists are to “take whatever other steps reasonably necessary under the circumstances” (Tarasoff, p. 426).

 

 

Question for Reflection

 

 

Traditional, More Limited Interpretation of Tarasoff

 

Frank calls your office saying, “My roommate Bill is your patient! He is heading for McDonald’s where he works! He has a gun and he is going to shoot the guy who fries up the burgers! You gotta do something!!!” Is this Tarasoff?

 

a)   Yes – This has all three elements of Tarasoff

b)   No – This does not have all three elements of Tarasoff

 

If you answered (b), you realized that the roommate told you about Frank being a danger to the fry cook; thus it is not Tarasoff under the old interpretation (Up until recently, Tarasoff dictated that you be told the threat against the identifiable victim directly from your dangerous patient). Here, the roommate told you.

 

Obviously, this is an ethical situation in any event, and you would instruct the caller how to proceed to help save the life of the fry cook (e.g., tell caller to inform the police or call McDonald’s management). Caution! Do not disclose the confidentiality of your patient. This could be a crank caller and not the real roommate. Use caution, and do not panic in a situation where Tarasoff may need to be invoked.

 

 

UPDATES AND ADDITIONS TO TARASOFF

 

“Duty to Inform”

 

Gross v. Allen 22 Cal.app.4th 354 (1994)

 

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

 

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

 

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

 

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

 

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

 

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

 

“Tarasoff does not extend to suicide… or does it?”

 

Bellah v. Greenson, 81 Cal.App.3d 614 (1978)

 

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

 

It appeared that all three requirements of Tarasoff were met:

 

1. Communicated Directly by Patient to Therapist

 

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

 

2. Serious Threat of Physical Harm that was Imminent

 

Consistent drug use throughout the treatment with Greenson

 

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

 

Tammy Bellah, the patient herself

 

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

 

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

 

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

 

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

 

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

 

 

Question for Reflection

 

 

Your patient, Carrie, tells you she is so angry with her boss she wants to “mess around with the brakes on his car.” When you investigate, she tells you she is only “blowing off steam” and she would never do anything like that. What should you do?

 

a)   Take steps to prevent the threatened danger to the boss

b)   Call and warn the boss and notify the police

c)   Hospitalize Carrie

d)   Contact Carrie’s support system immediately

 

The best answer here is (a). It is too soon to invoke Tarasoff (the second answer) as it would be more appropriate to take steps first (see above discussion of steps to take). Hospitalization is too radical, and is nearly impossible without patient permission at this point; thus, the third answer (c) is inappropriate. The last answer (d) is a subset of the first answer, thus the first (a) is a more inclusive answer.

 

 

New Addition to Tarasoff in California –

 

May be Coming to Your Town, Too

 

Ewing v. Goldstein (2004), Cal.App.4th [No.B163112.Second Dist., Div. Eight. Jul.16, 2004]

 

In California, an entirely new twist in duty to warn and protect has been decided once again. It may be that other states will soon decide to take up the call, and make changes, updates, or additions to their Tarasoff laws due to this new case law decision that has recently become precedent in California.

 

The Facts

 

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

 

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

 

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

 

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

 

The Trial

 

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

 

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

 

The Ewings’ Appeal

 

The Ewings make two primary points in their appeal:

 

  1. The trial court’s construction of the law was unduly narrow – without quoting the law here, most would agree it is rather wordy. However, since it was codified in 1985, there has never been any question about how to interpret what it means. “Communicated directly by patient to therapist” is clear: but in this case, the appellate court made new law (see explanation below).

 

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

 

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

 

The Appellate Decision July 15, 2004

 

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

 

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

 

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

 

Conclusion

 

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

 

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

 

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

 

 

TARASOFF

 

 

ADDED BY EWING

 

INTREPRETATION

OF EWING

 

 

Communicated directly to therapist by patient

For the purpose of advancing the patient’s therapy

 

 

Or by the patient’s immediate family member

 

“Reliable other” not only family member

 

 

 

 

 

Serious threat of physical harm

 

 

Grave bodily harm

 

 

 

Means the same thing

 

 

 

Identifiable victim “with a moment’s reflection”

 

 

No changes

 

 

 

No changes

 

 

 

MORE UPDATES AND ADDITIONS TO TARASOFF

 

“All foreseeable bystanders”

 

Hedlund v. Superior Ct of Orange Cty, 34 Cal.3d 695 (1983)

 

The fascinating thing about case law is judges love to be legislators. They like to make law, not just make rulings on law. The interest here with case law is not to assign blame to any psychotherapist for making an “error,” but to see what the judge did that somehow added to the standing law at the time, making new case law. This new case law is known as precedent, and should generally be followed thereafter. Thus, whenever we discuss case law, we are not interested in mistakes made or blame found; we are interested in new precedent set in order to identify our new responsibilities.

 

In the Hedlund case, an unmarried couple received counseling from an Orange County Counseling Center intern. The man made a threat to the woman during a session; he eventually acted upon this by shooting her while she sat in her car, shielding her 3-year old son from the bullet.

 

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

 

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

 

“Arson is a deadly weapon.”

 

Peck v. Counseling Svc of Addison Cty 145 Vt.61;499 A.2n 422 (1985)

 

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

 

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

 

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

 

“Attempt to seek past records.”

 

Jablonski by Pauls v. United States, 712 F.2d 398 (1983)

 

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

 

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

 

Difference Between Tarasoff, Homicide, and Suicide

 

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

 

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

 

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

 

 

TARASOFF

Duty to Warn & Protect

 

 

HOMICIDE

Duty to Protect

 

 

SUICIDE

Duty to Protect

 

 

Mandated to breach confidentiality

 

 

 

Permitted to breach confidentiality

 

Permitted OR mandated to breach (Meyer) confidentiality

 

 

- warn victim(s) - notify authorities

 

 

 

 

Mandated to take steps to prevent threatened danger

 

 

Mandated to take steps to prevent threatened danger

 

Mandated to take steps to prevent threatened danger

 

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

 

     Tarasoff / Ewing

     Child Abuse

     Gravely Disa

     bled

     Most forms of Elder Abuse (more later)

     Most forms of Dependent Abuse (the same as Elder Abuse)

 

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

 

     Some forms of homicidal behavior or ideation

     Some forms of suicidal behavior or ideation

     Some forms of threats, intimidation, harassment of dependent adults or elders

     (more later; Harmell, 1997).

 

 

Question for Reflection

 

 

Joe tells you he is going to kill his brother on New Year’s Eve with a gun from his collection. Today is September 2. Is this Tarasoff?

 

a)   Yes, identifiable victim, told to you

b)   Yes, unless he is psychotic

c)   No, not imminent danger

 

If you guessed (c), you are correct. Only two requirements are met – he told you directly, and the brother is identifiable. New Year’s Eve is not imminent danger.

 

 

ASSESSMENTS FOR VIOLENCE & SUICIDE

 

Assessment for Violence, Dangerousness, or Tarasoff

 

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

 

     History of violence – Single most predictive factor (Simon, 2001)

     Gender – Males are 10 to 1 over females more likely (Ibid.)

     Substance Abuse – increases the likelihood of violence (Stromberg et al., 1988)

     Mental Incapacity – interfering (Ibid.)

     Organized Plan (Simon, 2001)

     Feasible Plan (Ibid.)

     Unavailability of support group (Ibid.)

     Violent environment (Ibid.)

 

Assessment for Suicide: The SAD PERSONS

 

This is a tried-and-true and well-known suicide assessment called the SAD PERSONS that was originally developed by medical residents in a crisis situation who wanted to identify which patients were at risk for suicide from those who were not (Patterson et al., 1983). Their method was reviewed once again in 1994 (Juhnke, 1994). Juhnke has adapted the original SAD PERSONS for use with children and adolescents (Juhnke, 1996). The SAD PERSONS Suicide Assessment for Risk Model is as follows:

 

 

SAD PERSONS Assessment of Suicide Risk

 

 

Sex

 

Once again, these authors, in their research, found male patients are more likely to act out dangerously to self and others. Once again, it is mandatory to look at each patient and each element on a case-by-case basis.

 

Age

 

This important element was once given a value that it is not given today based on the zeitgeist of the particular time. Now that the Internet is so available, psychotherapists are able to go online and research the culture and age of the client in question to establish potential.

 

Depression

 

It stands to reason that the mood disorders in the Diagnostic and Statistical Manual are paired with suicidality. Clinical depression increases suicide potential and should always be taken seriously.

 

Prior History

 

As with assessment for violence, risk increases when there is a history of attempts. Some research shows that up to two-thirds of successful suicides have had a “trial run” or prior attempt that failed.

 

Ethanol Abuse

 

Interestingly, in 1983, the authors wanted to make the initials work, so they plugged in “ethanol” rather than “alcohol,” which would have made it SAD “PARSONS”. Their research indicates alcohol and drug abuse increases the likelihood of suicide.

 

Rational Thinking Loss

 

Has the patient lost the ability to think rationally? Is there a potential psychosis or reason the patient is hearing voices or thinking he or she should kill him or herself? For example, “A voice told me to kill myself…”

 

Support System Loss

 

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

 

Organized Plan

 

As with violence assessment and assessment for dangerousness, the more organized the plan, the more the psychotherapist should be concerned and take action quickly. A psychotherapist can never ignore even a disorganized plan.

 

No Significant Other

 

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

 

Sickness

 

Has the person or a loved one recently been diagnosed with an illness or disease that has made him or her want to end his or her life? This element could be paired with the “D” element of depression.

 

 

The beauty of the initial SAD PERSONS is that it included (and still includes) an assessment scale as follows. The psychotherapist is to give one point for each positive profile answer. For example, if the patient is a male, give one point for that answer (increased likelihood as explained above); if the patient has no prior history of suicide attempts, give a zero on that answer, and so on. Then use the scoring chart below in decision-making, and consult and document as usual.

 

 

Scoring the SAD PERSONS

 

 

0-2 points

 

 

No real problems; keep watch

 

3-4 points

 

 

Send home but check on patient frequently

 

5-6 points

 

 

Consider hospitalization invol or vol, depending upon your level of assurance the patient will return for another session

 

 

7-10 points

 

 

Definitely hospitalize voluntarily or involuntarily

 

The following is a case example to practice with the SAD PERSONS assessment of suicide risk:

 

 

CASE EXAMPLE – Suicide Risk Assessment

 

 

Danny is a 28-year-old man whom you have been seeing for three months under his Aetna Insurance at work. He has just told you his girlfriend has broken up with him. He is not particularly happy at work but continues to get up every morning, groom himself, catch the bus, grab something to eat, and get to his desk on time.

 

He tells you he won’t be seeing you for a few months because he has decided to take some time off work. It seems he has given many of his possessions away because he is “paring down my things” and “doesn’t need much anymore.” Since he lives in a furnished, month-to-month apartment, he tells you he has no ties, and can “leave anytime and with no looking back.”

 

You know Danny has been a heavy pot user in the past and in high school; he was hospitalized in the local psychiatric facility for swallowing a bottle of Tylenol with a fifth of vodka. His best friend found him later that day in the basement of his house, where he had gone so he would not be found.

 

When you inquire about Danny’s current state of mind, he tells you he is very happy to be getting time off from work and taking a long vacation. He tells you not to worry about him, and to fill in his therapy hour in your schedule because, “I don’t know when I will return from my vacation. I have taken a leave of absence from work.”

 

Do a SAD PERSONS on Danny and add up the points. What did you get? What would you do?

 

a)   2 – no problems… he is going on vacation… he’s fine

b)   4 – send home but call him later

c)   6 – consider hospitalization, but if you believe he will return, let him go

d)   7 – try to hospitalize no matter what

 

The best answer here is (c), 6 points = Male, depressed, prior attempt, drugs, no support system, no significant other. However, you have a bit of extra information here: Danny is giving away all of his possessions! With this information, that goes beyond the SAD PERSONS; take action quickly

 

What would you do to further protect Danny from harm without involuntarily hospitalizing him?

 

a)   Call his family and have them watch him 24 hours a day for awhile

b)   Call his insurance company and prepare for a voluntary or involuntary hospitalization

c)   Take steps to stop the danger

d)   Have him make a contract not to harm himself

 

The best answer here is (b), as Danny is seriously suicidal at this point. Normally psychotherapists try to take the least restrictive route of treatment with a patient. However, in this case, it seems immediate action is mandatory due to Danny’s level of suicidality.

 

 

SAD PERSONS for Children and Adolescents

 

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

 

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

 

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

 

 

SAD PERSONS for Children and Adolescents (A-SPS)

 

 

S….Sex

 

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

 

A….Age

 

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

 

D….Depression

 

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

 

P….Prior History

 

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

 

E….Ethanol Abuse

 

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

 

R….Rational Thinking Loss

 

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

 

S….Support System Loss

 

Isolation and impaired interpersonal contacts correlate with teen suicide.

 

O….Organized Plan

 

As with violence assessment, this speaks for itself.

 

N….Negligent Parenting (children or adolescents)

 

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

 

S….School Problems (children or adolescents)

 

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

 

 

GUIDELINES FOR CLINICAL INTERVENTION

 

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

 

TOTAL SCORE RANGE = 0 to 100

 

Clinician scores each risk factor between 0 and 10

 

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

 

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

 

Male = 10 points
Female = 0 points

 

 

SAD PERSONS Children and Adolescents Scoring

 

 

 

 

0-29

 

Do formal suicide assessment

Encourage child/parents to participate in child’s counseling

Give child card with 24-hour crisis telephone number

Encourage follow-up visits if therapy is suggested

Note any changes in child’s condition

Should therapist intensify treatment?

Consult when unsure, “No-suicide” contract, 24-hour hotline, if necessary

 

 

 

30-49

 

Includes everything from previous category

Continued suicide assessment

Look for clues such as suicide ideation or plan in writings and art work

e. g., journals, play-writing, poetry, short stories

Have parents read Email accounts, “MySpace”, Facebook

 

 

 

50-69

 

Consider voluntary / involuntary hospitalization

What is person’s willingness for continued treatment?

Is person complying with treatment plan?

How safe is person without hospitalization?

How involved or supportive is family?

Should there be Child Protective Services involvement?

 

 

Additional Risk Factors

 

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

 

     Depression or affective disorder

     Ethanol or drug abuse

     Rational thinking loss

     Organized suicide plan

 

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

 

SECTION C: INFORMED CONSENT

 

The following are social work codes that apply to informed consent.

 

NASW Code of Ethics

 

Standard 1.03(a-f) – Informed Consent

 

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

 

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

 

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

 

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

 

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

 

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

 

CSWA Code of Ethics

 

Standard II – Responsibility to Clients

 

1. Informed Consent (a-b)

 

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

 

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

 

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

 

Patient Record-keeping Guidelines

 

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

 

Other purposes include review of the delivery of services, self-monitoring, documentation of what is working, and progress toward treatment goals. In essence, properly kept records enhance the treatment and protect the psychotherapist from litigation and spurious ethics and licensing allegations. Practitioners who do not maintain adequate patient records put themselves in ethical and legal peril (Schaffer, 1997). Keeping records is the best form of liability insurance (Corey, Corey, & Callanan, 2007).

 

The exact way progress and psychotherapy (HIPAA) or process notes are kept depends upon the setting in which the psychotherapist is working. For example, in certain clinics and hospitals, notes must be taken in specific ways to meet requirements for funding sources. In university counseling centers, or psychoanalytic training institutes, routine progress and psychotherapy notes may have completely different requirements. Private practice notes are at the discretion of the clinician with exceptions for state and federal law.

 

Experts suggested what should be the contents of patient records prior to HIPAA (Benitz & Jensen, 2004; Canter, Bennett, Jones, & Nagy, 1994; Bennett, Bryant, VandenBos, Greenwood, 1990; APA, 1994; Corey, Corey, & Callanan, 2007). However, the basics remain the same:

 

     Identifying data – such as culture, age, address, telephone numbers, relationship status, cultural issues

     Primary care physician – or document why there is none

     Objective finding from most recent physical if possible

     Progress of treatment

     Type of service – individual, group, couple, family, child; theoretical orientation being used at various stages of treatment; possible crisis intervention

     Dates of service

     Intake information

     Mental status exam

     Signed informed consent – good for the length of the treatment unless office policies change

     Referrals to other service providers

     Releases of information forms – good for 12 months unless the patient changes his or her mind

     Significant actions taken – “red flag” issues and how handled, danger to self or other, abuse issues, substance abuse, etc.

     Diagnosis – using current DSM terminology for insurance purposes; if records are to be public in any way (court proceedings), take special care here)

     Fee and insurance information

     Consent for treatment form – signed by patient

     Chart notes – see below for further discussion

 

How Long Should Patient Records be Retained?

 

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

 

Specialty Guidelines for Delivery of Services:

 

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

 

Interpretation:

 

     Full records be retained intact for at least 3 years after completion of services or last date of contact, whichever is later

     A full record or summary of the record be maintained for an additional 12 years

     Records may be disposed of no sooner than 15 years after completion of planned service or last contact, whichever is later

 

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

 

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

 

Chart Notes

 

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

 

 

Process/Psychotherapy Notes

 

 

Progress Notes

 

 

Less for defending oneself

 

More for documenting therapy relationship

 

Follows one’s theoretical orientation based upon the research

 

Available by subpoena, Court order only

 

Thoughts, hunches, speculations

 

 

Solid treatment plan documentation

 

Especially in crisis situations

 

Safety planning in crises

 

Public record of goals set…goals met

 

Available to patient & insurance co.

 

Decision-making

 

 

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

 

 

Question for Reflection

 

 

Psychotherapists can keep their own personal thoughts about a patient in personal files at home.

 

a)   True

b)   False

 

If a psychotherapist has taken all the appropriate steps to become HIPAA compliant, he or she may keep two sets of records under Federal and State HIPAA laws. However, neither of these records are “personal” records that are casual records that can be kept at home as personal files. Thus, the answer is (b) false. For more information, one must take a full course on the laws of HIPAA.

 

 

HIPAA AND PATIENT RECORDS

 

Once again, there are numerous courses both online and in person where psychotherapists can learn how to become HIPAA compliant. Here, the basics will be discussed in order to integrate record keeping into the discussion with HIPAA compliance.

The Health Information Portability and Accountability Act (HIPAA) dictates therapists follow new and complicated federal guidelines with regard to confidentiality of patient records for storage, informed consent, employee training, security of records, and certain electronic transactions of patient information. Normally federal law supersedes state law; with regard to HIPAA, psychotherapists are instructed to follow whichever law protects patient’s privacy the most adequately and completely. Psychotherapists are required to study both federal and state laws that are applicable and decide which ones supersede the others. Fortunately, many available courses do this work for clinicians.

 

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

 

 

HIPAA Process/Psychotherapy

Notes

 

 

HIPAA Progress Notes

 

Private notes of the psychotherapist not readily available to insurance company and patient

 

 

Readily available to insurance company and patient

 

Records must be separated into two different and distinct file folders

 

 

Records must be separated into two different and distinct file folders

 

Subpoenable

 

 

Subpoenable

 

Available by Court Order

 

 

Available by Court Order

 

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

 


Question for Reflection

 

 

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

 

a)   State laws are less protective of patient’s confidentiality

b)   State laws never supersede federal laws

c)   State laws are more protective of patient’s confidentiality

 

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

 

 

Patient Access to Records and Record Retention

 

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

 

 

Access to View Records

 

 

H&SC 123110a – Within 5 days

 

Access to Copy of Records

 

 

H&SC 123110b – Within 15 days

 

Denial of Access to Records

 

 

H&SC 123115

 

Summary of Records

 

 

H&SC 123130a within 10 days

 

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

 

Summary of Records

 

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

 

     Chief complaint and history of complaint

     Consultation received

     Referrals made during the course of treatment (e.g., medication, anger management, couple counseling)

     Diagnoses being treated

     Treatment plan

     Medications and evaluations for medications

     Objective findings from most recent physical if possible

     Progress made in treatment

     Psychological assessment results

     Termination notes, if applicable

 

Social Work Ethics Codes that apply to Record Keeping

 

NASW Code of Ethics

 

Standard 1.08 (AB) – Access to Records

 

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

 

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

 

Standard 3.04 (ad) – Client Records

 

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

 

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

 

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

 

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

 

CSWA Code of Ethics

 

Standard II – Responsibility to Clients

 

2. Practice Management (d-e)

 

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

 

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

 

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

 

The idea here is to:

 

     Facilitate provision of services later, if needed to the client by other professionals

     To allow for replication of research

     To aid in accuracy of billing

     To ensure compliance with law

     To properly store records in databases

     To ensure that records, insurance information, and billing are prepared accurately and appropriately.

 

The idea here is to avoid billing for a false diagnosis (e.g., Axis I: 296 Major Depressive Disorder) that is commonly and universally paid for by the insurance company rather than what is actually being treated (V61.1 Partner Relational Problem), which may not be covered by insurance because a V-code is “a condition, not a mental disorder.” This is insurance fraud, and a severe license and ethics violation.

 

 

Question for Reflection

 

 

According to the APA Specialty Guidelines (1981), how long must private practice records be retained?

 

a)   A total of 15 years

b)   A total of 7 years in private practice settings

 

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

 

 

SECTION D: FEES AND FINANCIAL ARRANGEMENTS

 

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

 

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

 

     Inform the patient at the outset what the fees are and when they will be collected from the patient (e.g., each session, monthly)

     Wherever possible, require payment at the time of each session

     Maintain careful accounting records so money does not “slip through the cracks”

     Render statements to patients in a timely manner

     Issue appropriate reminders regarding unpaid bills

     Openly discuss with patients possible resolution of payment problems prior to accounts becoming overdue

 

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

 

Unconscious Fiscal Convenience

 

Welfel (2010) discusses the term “unconscious fiscal convenience,” introduced by Cummings in 1995. The meaning of this term is the overlooking of important therapeutic dimensions of the sessions because the issues would conflict with the psychotherapist’s financial self-interest. In other words, avoiding risky topics that may stimulate the patient to become annoyed, upset, or wish to leave therapy prematurely. Welfel asserts such clinicians are not malicious in any way, but fail to see their unconscious underlying financial motives. It may be a way of self-preservation or financial survival.

 

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

 

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

 

Psychotherapists have all the same financial pressures as everyone does, often without the security of a company-paid retirement plan. Indeed, most private practice clinicians pay for their own medical and disability insurance along with retirement planning, just as many self-employed individuals must do. The temptation to maintain a full-fee patient must not influence the decision to conduct a proper and timely termination when appropriate.

 

Social Work Ethics Codes that apply to Financial Arrangements

 

NASW Code of Ethics

 

Standard 1.13 – Payment for Services (ac)

 

(a) SWs set fees that are fair and reasonable.

 

(b) SWs avoid bartering for services.

 

(c) SWs do not solicit a private fee when the patient is entitled to such services through an agency.

 

Standard 3.05 – Billing

 

SWs establish accurate billing practices that accurately reflect who provided the treatment in the setting.

 

Standard 4.04 – Dishonesty, Fraud, and Deception

 

SWs should not participate in, condone, or be associated with dishonesty, fraud, or deception (e.g., insurance fraud, false billing)

 

CSWA Code of Ethics

 

Standard V – Fee Arrangements (AE)

 

“When setting fees, clinical social workers should give consideration to the client’s ability to pay and make every effort to establish fees that are fair, reasonable, and commensurate with the value of the service performed” (CSWA, 2006, p. 10).

 

(a) CSWs clarify fee collection in the initial contact with patients and take into consideration any financial difficulties the patient may have.

 

(b) CSWs do not accept referral fees.

 

(c) CSWs abide by the conditions of contracts under which they operate. If any part of the contract seems unethical, the social worker seeks redress.

 

(d) CSWs avoid barter for service arrangements.

 

(e) CSWs who work for agencies do not attempt to switch the clinical patient to his or her private practice.

 

General rules from both ethics codes:

 

     Discuss fee structure as early as is feasible

     Discuss fees honestly

     Discuss limits in services at the start (e.g., HMO refusals)

     If collection services are used, patient is informed first and given opportunity to make arrangements to pay

 

INSURANCE FRAUD

 

Never falsify! If something did not make it into the chart, you may chart it at any time. Simply chart the new material with the correct date on which it is being charted, using the notation that the event actually occurred on another previous date. For example, “In reviewing the file on February 10, 2001, the following was not mentioned in the progress note for the session of November 11, 2000 and will be noted at this time.” Never “fudge” the date or try to force something into the file at a place or on a previous date for which the note does not belong. It makes the entire record suspect, and will incur doubt about the credibility of the entire record.

 

Below are various actions that are considered insurance fraud:

 

Giving an “insurance diagnosis”. This means giving a diagnosis that you know the insurance company will reimburse rather than the correct diagnosis that you are actually treating (e.g., some insurance companies will not pay for Axis II personality disorders, or V-codes like parent-child issues). They reason that Personality Disorders are not likely to change a great deal, despite what the psychotherapist and the literature reports (The insurance companies think they know better.). Since V-codes are “conditions,” not mental disorders, they are not always reimbursable.

 

Changing the start date of treatment. Sometimes a patient, with the best of intentions, will ask you to change the start date of treatment to coincide with when his or her insurance coverage begins. For example, if the patient begins treatment with you on September 1, but her insurance coverage at her new job does not begin until October 15, the client may ask you to “pretend” as if you began the treatment after her insurance became effective in order to eliminate any preexisting conditions. (Preexisting conditions refers to any medical or mental health diagnosis that was being treated prior to the insured person’s new carrier covering them.)

 

Missed sessions. Insurance will not pay for unattended sessions. It must be indicated on the billing form that certain sessions have been unattended in order to be billing ethically and legally. Indeed, if you are billing parents for a teen’s therapy, or sending bills to a business manager or any third party, clear this up in advance with regard to the confidentiality of the patient. This is particularly important with an adolescent or teen so the minor does not perceive billing statements to parents that indicate missed sessions as a breach of confidentiality.

 

Billing at an accurate fee. Psychotherapists may not bill at any other fee than that being charged to the patient. It is unethical and illegal to try to collect the entire fee through charging a higher rate to the insurance company so that the insurance pays the entire fee, or a greater portion of the fee, while the patient pays little or nothing without clearing this with the insurance company in advance. The insurance company will pay their co-payment dependent upon your bill or their contract with the patient, or his/her employer; thus, your bill must be accurate. Some well-meaning psychotherapists will try to bill at a higher rate to collect the entire co-payment from the insurance company so the patient does not have to pay any fee. This is insurance fraud.

 

PROFESSIONAL CONSULTATION

 

The six most important words in therapy are:

 

Consult – Consult - Consult

 

Document – Document - Document

 

All kidding aside, in legal proceedings and licensing violation proceedings, the defending psychotherapist is often asked if he or she sought a consultation when faced with a difficult or complex situation or personal problem. Consultation is the standard of care that is used to reduce counter-transference and burnout, and to support a treatment plan with dangerous patients.

 

Several precedents were set in the case of Roberts-Henry v. Richter (1989) in which Dr. Richter, a Colorado psychiatrist, had sexual relations with his patient ten days after terminating therapy for the specific purpose of having a sexual affair (both parties were married and the patient had sought therapy due to guilt over having had an affair). In Colorado at the time, it was not illegal to have sex with a patient ten days post termination, or to terminate solely for the purpose of having a sexual relationship. During the trial, the attorneys for the plaintiff, who knew the defendant had personal problems at the time of the sexual affair with the plaintiff, asked the psychiatrist “Did you return to personal therapy at the time? Did you seek consultation with another professional in Colorado? How many psychiatrists do you know in Colorado? Why didn’t you seek consultation with another psychiatrist before having sex with a patient?” Even here, it became an important part of the case against the defendant that he failed to seek consultation. The three-man, three-woman jury found Plaintiff Roberts-Henry 18% responsible for her own damages, and Defendant Richter 82% responsible for her damages of Post-Traumatic Stress Disorder. Several precedents were set in this case:

 

Plaintiff Roberts-Henry later addressed the Colorado legislature drafting a bill to limit the ability of the defendant’s attorney to investigate the plaintiff’s sexual history

 

The Plaintiff addressed the Colorado legislature drafting a bill to make sex with a patient illegal, after which six other states (1989) followed suit. Note: Each psychotherapist is mandated to know his or her state’s laws regarding sex with current and former patients.

 

The following guidelines have been suggested to help determine “Why and when to seek consultation” (Falender & Shafranske, 2004; Clayton & Bongar, 1994):

 

     To document the psychotherapist was practicing the standard of care by seeking consultation

     To get ongoing one-on-one continuing supervision

     To obtain a second opinion

     To deal with counter-transference or burnout issues

     To avoid impaired judgment

     For any “red flag” issues, e.g. danger to self or other, abuse issues

     Uncertainty about diagnosis

     When treating special populations, e.g. cultural issues, AIDS/HIV

     Any legal or ethical consideration

     Lack of momentum or improvement in the treatment

     When using new techniques with no established standard of care

 

Social Work Codes of Ethics that apply to Consultation

 

NASW Code of Ethics

 

Standard 2.05 – Consultation (a-c)

 

(a) Always seek consultation when it is in the best interests of the patient.

 

(b) Seek consultation only from others who have demonstrated expertise, knowledge, and competence related to the subject of the consultation.

 

(c) Disclose the least amount of patient information necessary to achieve the purpose of the consultation.

 

Standard 3.01 – Supervision and Consultation (a-d)

 

(a) Those who provide consultation and supervision must have the proper knowledge and skill.

 

(b) Those who provide consultation and supervision are responsible for setting clear culturally sensitive boundaries.

 

(c) SWs should not participate in dual or multiple relationships with supervisees in which there is a risk of exploitation.

 

(d) Evaluation of supervisees should be done in a manner that is fair and respectful.

 

CSWA Code of Ethics

 

Standard 4 – Competence (a&c)

 

(a) CSWs are aware of their own limitations and, when necessary, utilize consultants or supervisors. The clinician receiving the consultation is responsible for ensuring the consultant is a recognized member of the profession and is qualified to carry out the required service.

 

(c) CSWs are responsible for remaining abreast of knowledge and developments in their field that may benefit patients by getting ongoing supervision or consultation and continuing education.

 

When do we need patient permission for consultation?  It is generally understood that psychotherapists may get “professional consultation” without the consent of the individual if the demographics of the person are disguised carefully.

 

Who are good choices for professional consultants? Consultants should be senior therapists, or experts in their fields such as attorneys, pharmacists, medical doctors, substance abuse experts, ethics committees, and experts in specific cultures and ethnic groups.

 

Unfortunately, many psychotherapists fail to seek consultation due to lack of finances or professional arrogance. Professional consultation is one of the most powerful forms of evidence against a claim that a mental health professional was exploiting a patient's transference for personal gain (Behnke, Preis, & Bates, 1998). Past studies indicate that many psychotherapists failed to utilize consultation, which was detrimental to their patients (Clayton & Bongar, 1994). Experts note that failing to consult when appropriate may lead to negligence in malpractice cases (Kapp, 1987). In fact, Applebaum and Guthiel (1991) found “consultation together with documentation to be the ‘twin pillars of liability prevention’” (p. 201). However, now that consultation has “come out of the closet” such that all insurance companies are offering free consultation services to their insured, virtually all psychotherapists are aware that consultation is the standard of care and available to everyone.

 

 

Questions for Reflection

 

 

When must a psychotherapist seek consultation?

 

a)   To learn how to earn more money

b)   When there is a lack of momentum in the treatment with a patient

c)   When the therapist wants to meet new professionals to network

 

Of course, the answer is (b). There are a number of reasons in Section D to seek formal consultation, but with answer (b), the psychotherapist must seek consultation.

 

Therapist Jones does not want her new patient to stop bringing in her 7-year-old son because the psychotherapist honestly thinks she can help the mom and the son to get along better, and she wants to help them improve their lives. For this reason, she decided to single out the mom and bill the mom’s insurance company as if the mom is coming in for Generalized Anxiety Disorder without the son. This is an example of:

 

a)   Insurance fraud

b)   What a psychotherapist needs to do in the helping professions

c)   The only way a psychotherapist can get paid in 2005

d)   Ethical because they would have to drop out of therapy if the psychotherapist billed it any other way as they couldn’t pay for therapy

 

Of course, the answer here is (a) because any type of collusion or form of lying to an insurance company is insurance fraud, despite the fact that Jones wants to help her patient to get services. It would be safer for the psychotherapist – and better modeling for the patient – for Jones to simply lower the fee to a rate the patient can afford.

 

When a psychotherapist is overly concerned with his or her finances versus helping the client, experts have termed this:

 

a)   Counter-transference

b)   Burnout

c)   Unconscious fiscal convenience

 

The answer is (c). Unconscious fiscal convenience is insidious especially because it is unconscious by definition. It is easy to get caught up in one’s own financial issues while overlooking what is best for the patient. This section discussed methods suggested to prevent unconscious fiscal convenience.

 

 

SECTION E: COUNTER-TRANSFERENCE

 

Kernberg (1965) defined counter-transference (CT) as “the analyst’s conscious and unconscious reactions to the patient in the treatment situation which are reactions to the patient’s reality as well as to his transference; and also to the analyst’s own reality needs as well as to his neurotic needs” (p. 38). Heimann (1950) was one of the first to offer several revisions of the CT concept. She expanded the term CT to include all of the feelings the therapist has toward his or her patient. Fundamentally, CT is considered important because it can impact the therapy in a number of negative ways – premature termination, inappropriate therapist reactions, lack of therapist insight, and failure to properly treat the patient (Harmell, 1987, 1999). Thus, it is important for all therapists to make efforts to remain aware of their CT reactions to patients in order to reduce harmful attitudes and/or behaviors related to patients (Harmell, 1987).

 

Additionally, CT is a wonderful tool by which psychotherapists can gain insight into nonverbal messages from patients, become aware of their own visceral experiences related to patients, and use it as a valuable feedback tool regarding the patient. Early on in the history of psychotherapy, many powerful influences helped to reduce therapist avoidance of their CT reactions by reframing the concept positively (Heimann, 1950; Grossman, 1965; Epstein & Feiner, 1979; Racker, 1953, 1968; Langs, 1982).

 

Harmell (1987) studied the relationship between CT and three variables (1) Level of Therapist Experience, (2) Theoretical Orientation, and (3) Therapist Self-Awareness, both independently and as a predictive unit. It was found with CT subscales that CT is best examined as clusters of specific attitudes and behaviors, rather than a unidimensional global concept. Clearly, CT is a complex topic to study and evaluate.

 

Psychotherapists are constantly confronted with boundary challenges. Steinman et al. (1998) enumerated several common areas of concern with regard to CT.

 

Asking personal questions: Many psychotherapists find it withholding and difficult not to answer personal questions when a client asks. Most psychotherapists will only answer questions that are public knowledge (e.g., teaching affiliations, professional associations), and questions that, if answered, the psychotherapist believes – after due consideration or consultation – will be therapeutic to the client. Most licensing boards advise psychotherapists to inform clients of any information related to the status of the license.

 

Flirting: Asking the psychotherapist to meet outside the office, at a restaurant, or at a hotel is a dangerous precedent to start, and a difficult procedure to stop. It is generally not appropriate to meet outside of the office for most reasons aside from an emergency situation or specific methods that require out-of-office procedures.

 

Asking favors: It is difficult to turn down a patient’s request to reduce a fee, loan a book, or tell personal details of one’s life. However gratifying, this favor is not the purpose of therapy and is often the beginning of the “slippery slope” that leads to poor decision-making with regard to ethics.

 

The new patient talking negatively about a past therapist: This is a very seductive attempt to flatter you and compare you favorably to the former therapist. It is certainly enjoyable to hear one is a “better” therapist and one is “doing a better job” than the last therapist, but it is mandatory to remember the reasons for such disclosures.

 

Asking for advice: “What would you do if you were me?” This is such a common question! As psychotherapists, we do not answer such questions directly in most cases. This is not helpful to a client, and not why the client is attending sessions. The real ethical problem here is the client could take the “advice” only to find it wrong, ineffective, or even harmful.

 

Psychotherapists must remain vigilant to CT reactions in order to avoid forcing opinions, feelings, or inappropriate feelings upon the client (Harmell, 1999). The primary methods of handling CT and burnout consist of:

 

     Taking time off from work

     Taking vacations away from the office and out of town

     Peer and senior consultation

     Literature review of the particular topic of concern

     Personal therapy

     Hobbies and personal time

 

 

Questions for Reflection

 

 

Who was the first person to expand the concept of counter-transference?

 

a)   Freud

b)   Heimann

c)   Langs

 

The answer is (b). Heimann was the first to expand the definition of CT to include all of the feelings, positive and negative, of the psychotherapist.

 

Identify two routine boundary challenges (Steinman et al., 1998) most psychotherapists confront in a therapeutic relationship:

 

a)   Patient asking therapist a personal question; Patient asking for advice

b)   Sleeping with patients; Loaning money to patient

c)   Patient borrowing money from therapist; Patient loaning therapist money

 

As discussed in Section E, the answer to Question 2 is (a).

 

 

Burnout and the “Troubled” Therapist

 

Use of the term “impaired” is protected by federal law and can only be used in context with individuals who qualify under the Americans with Disabilities Act. Thus, in the former research with respect to “impaired” therapist, the terminology will be referred to hereafter as the “troubled” therapist despite the fact that the authors below used the term “impaired,” which was unprotected by the ADA at the time of printing (C. Falender, personal communication, November 10, 2004).

 

Many factors can negatively influence psychotherapists’ ability to remain effective personally and professionally; these include substance abuse, illness, counter transference, and burnout. Stadler (1990) refers to the troubled therapist as a person who has lost the ability to resolve his or her stressful events. He or she may have lost the ability to deal with inner conflicts activated by client material, and to stabilize and facilitate patient growth. When the goal switches from stabilizing the client to stabilizing the therapist, burnout can be strongly suspected. Emerson and Markos (1996) suggest that sexual exploitation is a strong manifestation of therapist problems that have gone out of control.

 

Psychotherapists who become sexually involved with their clients share certain characteristics that reflect the troubled therapist (Emerson & Markos, 1996):

 

     Fragile self-esteem

     Difficulty establishing intimacy in his or her own personal life

     Practicing in isolation

     Needing to rescue clients

     Needing to be reassured about one’s own attractiveness

     Possible substance abuse

     Feeling of poor self-worth

 

Benningfield (1994) identifies several other characteristics, other than those related to sexual involvement, that have been associated with burnout and the troubled therapist:

 

     Lack of empathy

     Extreme loneliness

     Poor social skills

     Social isolation

     Paying little attention to, and denying the possibility of, harm to others

     Complete preoccupation with one’s own needs

     Denial of professional responsibility for one’s actions with patients

 

Social Work Ethics Codes that apply to Counter-Transference

 

NASW Code of Ethics

 

Standard 2.09 – Impairment of Colleagues (A&B)

 

(a) SWs who know of another social worker who is impaired due to personal problems, psychological distress, substance abuse, or mental health difficulties that interfere with practice effectiveness, must approach that colleague when it seems feasible and attempt to assist the colleague in taking remedial action.

 

(b) SWs who believe a colleague is not taking steps to remediate his or her impairment should take action through appropriate channels established by various agencies or employers.

 

Standard 2.10 – Incompetence of Colleagues (A&B)

 

(a) SWs who are aware of a colleague’s incompetence should consult with that colleague and assist that person in getting remedial help.

 

(b) SWs who believe a colleague is not taking steps to remediate his or her impairment should take action through appropriate channels established by various agencies or employers.

 

CSWA Code of Ethics

 

Standard IV – Relationships with Colleagues (e)

 

CSWs act with integrity in their relationships with colleagues and members of other professions. They know and take into account the traditions, practices, and areas of competence of other professionals and cooperate with them fully for the welfare of clients.

 

(e) CSWs who have knowledge of a colleague’s impairment misconduct, or incompetence attempt to bring about remediation through appropriate means through appropriate regulatory bodies.

 

General ethical issues related to counter-transference and staying out of trouble. It is important for psychotherapists to practice within their area of competence, training, experience, and education. Burnout is more likely when psychotherapists work beyond their competence and “freelance” rather than use tried and true methods. Freelancing is a term that refers to the failure to research the best and most effective methods of clinical practice for a particular diagnosis, in favor of simply trial and error without a formal or thoughtful treatment plan that is relevant and effective.

 

 

Question for Reflection

 

 

The term “impaired” with regard to psychotherapists is now protected by federal law. Why did this happen?

 

a)   The term is too broad to be descriptive

b)   The term is not descriptive enough for psychotherapy

c)   The term is protected by federal law for Americans with Disabilities

 

The term “impaired” is now only used for people who are covered under the Americans with Disabilities Act that makes the answer to Question 3, (c).

 

 

MULTIPLE RELATIONSHIPS

 

In Harmell’s 1998 article “Multiple Multiple Relationships Relationships,” she noted that ethics committees and licensing boards have always had difficulty defining the terms dual and multiple relationships. This began with major figures in the field such as Freud and Jung, both of whom straddled the line with their patients, although the “line” had not yet been solidly set. Since the article was written in 1998, the author did not have a chance to include the more recent newsworthy events defining sexual behavior credited to former President Clinton when he appeared to segregate oral sex from sexual behavior entirely, giving a new slant to sexual terminology (not to mention the presidential definition of the word “it” as it related to sexual activity). This is mentioned here to demonstrate the difficulty inherent in a fairly open society such as that of the United States in coming to a consensus on sexual terminology.

 

Definitions. Sonne (1994, p. 376) defines multiple relationship as “situations in which the psychotherapist functions in more than one professional relationship, as well as those in which the psychotherapist functions in a professional role and another definitive and intended role, as opposed to a limited and inconsequential role growing out of and limited to a chance encounter.” In other words, multiple roles can be concurrent, or follow each other. Either way, it is generally considered a boundary violation. Positive limit-setting is something all therapists must master by placing restrictions when responding to patient requests and reframing their response to therapeutically meet the patient’s legitimate need.

 

State Laws that apply to Multiple Relationships

 

No psychotherapist is immune to the possibility of engaging in an inappropriate relationship with a client (Olarte, 1997). Sexual misconduct is considered one of the most serious ethical violations and is, unfortunately, a very common allegation in malpractice suits, licensing violations, and ethics complaints. “Therapist-client sexual contact is arguably the most disruptive and potentially damaging boundary violation” (Corey, Corey, & Callanan, 2007). Experts agree that when sexual activity begins, therapy as a helping process ends (Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1993). Some psychotherapists maintain, “Once a patient, always a patient;” however, the American Psychological Association Ethics Committee and task force has declined to make a blanket prohibition against sexual intimacies forever after the two-year prohibition subsequent to a “normal” termination. The controversy exists primarily between rural and large city psychotherapists, especially where the population in a small town may be a few thousand people.

 

It is important that LCSWs become familiar with the state statutes that cover violations of this well-known prohibition against patient-therapist sexual relationships. The Ethics Codes are the same for all LCSW’s.

 

Many states proclaim a blanket prohibition against sexual activity between therapist and patient in any of the three situations that follow:

 

(a) While in therapy,

 

(b) Within two years of a normal termination

 

(c) By means of “therapeutic deception.” – By therapeutic deception, the legislature means the use of coercion to coax a client into inappropriate sexual behavior (e.g., “I can only help you if you take off your clothing and let me massage you.”).

 

Some states define a therapist having sex with a client as a crime. Some states require that all therapists have copies of a brochure regarding sexual relationships with a therapist. In California, for example, this brochure, called Professional Therapy Never Includes Sex, must be available for distribution if and when any client discloses he or she has either had a sexual relationship with a former or current psychotherapist, or the therapist made a suggestion of such activity. Contact your state licensing board for state-specific resources at: List of state social work boards.

 

Purpose of the brochure and current psychotherapist’s responsibility. The most current Professional Therapy Never Includes Sex was published in 2002 in California under the auspices of the Department of Consumer Affairs. The primary purpose of the brochure is to provide information and guidance to patients who have been subjected to possible inappropriate sexual activity, contact, or suggestion by their psychotherapists. The brochure must be provided by the current psychotherapist to a current patient who discloses he or she has experienced such activity in a former or current psychotherapy relationship.

 

The current psychotherapist has the duty of reviewing the brochure and its options with the patient who reports abuse by a former or current (seeing the patient simultaneously with you) psychotherapist. However, you may not contact any authorities such as an ethics committee or licensing board to report the unethical psychotherapist. The only person who may take such action is the abused patient him or herself, unless the abused patient is a minor. If the person who discloses he or she was abused by a former or current psychotherapist is a minor, this must be reported as child abuse, despite the wishes of the abused patient. Most likely, the minor’s guardian should be brought in as well.

 

Contents of the brochure. The Brochure is written for patients who have been abused; it is not for the benefit of psychotherapists. Therefore, it is written for people who are not familiar with the laws or ethical standards regarding sexual contact between patients and their therapists.

 

The Brochure begins with a simple and brief definition of terms that explains the difference between types of psychotherapists (psychiatrist, psychologist, licensed marriage and family therapist, etc.).

 

The brochure continues by explaining what the warning signs to be aware of are in psychotherapists who are exploiting patients sexually and preparing patients to be exploited sexually (e.g., making sexual jokes, dressing inappropriately, scheduling late-night appointments). There is a section explaining what feelings the patient who has been sexually exploited might experience.

 

The where to start section gives general ideas such as “talk to someone,” and suggests calling a crisis center, a professional association, finding a new therapist experienced in patient abuse, or contacting the licensing board.

 

Importantly, it empowers the patient by giving the reporting options and telling the abused patient it is up to him or her if reporting is something he or she wishes to do. It directs the patient to further detailed discussions of how to report the offending psychotherapist:

 

  1. Taking Administrative Action – Licensing Boards

 

  1. Professional Association Action – Ethics Committees

 

  1. Civil Action – Filing a civil suit for malpractice

 

  1. Criminal Action – Psychotherapist sex with a patient is a crime; the patient can call the local law enforcement agency or sexual assault unit to make a report of the criminal action, and/or the patient can call the local victim-witness assistance program or district attorney or call 1-800-VICTIMS (842-8467)

 

The next section in the brochure is finding a therapist that gives suggestions such as asking a friend, calling a professional association, or contacting a sexual assault center. It concludes with a frequently asked questions section and a patient’s bill of rights.

 

Social Work Ethics Codes that apply to Multiple Relationships

 

NASW Code of Ethics

 

Standard 1.09 – Sexual Relationships (a-d)

 

(a) Under no circumstances do social workers have sexual activity with patients.

 

(b) SWs do not engage in sexual activities or sexual contact with patient’s relatives or others who have a close personal relationship with the patient. Social workers do not have sexual contact with relatives of their patients. The social worker maintains the entire burden for setting clear and appropriate boundaries, culturally and otherwise.

 

(c) SWs do not engage in sexual activity with former patients except under the most extraordinary circumstances.

 

(d) SWs do not provide services to those with whom they have had sexual relationships.

 

Standard 1.11 – Sexual Harassment

 

SWs do not sexually harass clients, including sexual advances, solicitation, and requests for sexual favors.

 

CSWA Code of Ethics

 

Standard 3 – Relationships with Clients (A&B)

 

(a) CSWs are responsible for setting clear boundaries about dual and multiple relationships. The do not take chances where there is an opportunity for patient exploitation, especially when the CSW is seeing two or more patients who know each other.

 

(b) CSWs do not engage in sexual activity with former patients except under the most extraordinary circumstances. CSWs do not provide services to those with whom they have had sexual relationships.

 

In general, most agree that other acts that are unethical dual relationships include borrowing money from a patient, hiring a patient, doing business with a patient, having a close personal relationship with a patient, and having close relations with a patient’s relative.

 

SECTION F: CHILD ABUSE

 

Author Disclaimer

 

This document is in no way meant to recommend what is and what is not reportable as child abuse. Child abuse reporting laws are State specific laws , and consequently vary from state to state. These laws are based upon the Federal laws for child protection. Be sure to check the specific statutes in your state by going to: Child welfare state statutes.

 

Child abuse reporting law is constantly changing, and psychotherapists have the responsibility to maintain updated information on current child abuse requirements by calling the Child Welfare Department, attending child abuse workshops, and perusing documents such as those referenced here. This section is a guide to child abuse issues.

 

Reportable Acts of Child Abuse

 

In 1997, the National Committee to Prevent Child Abuse released a report that shocked America – more than three million American children suffer from abuse and neglect (Department of Justice [DOJ], 2000). Gathering accurate information is difficult, as people are hesitant to report abuse for numerous reasons. Some of these reasons include fear of having children removed from the home, fear of retaliation by the abuser, domestic violence issues in the home, and unreported events of child abuse treated as accidental injury. Even with this phenomenon of underreporting, California for example, received 540,577 reports of child abuse incidents in 1999 (DOJ, 2000).

 

Historical Perspective on Child Abuse

 

In 1989, Zigler and Hall conducted a brief review of the existing literature on child abuse. They discovered it was not uncommon for infants to be sacrificed in order to dedicate public structures and bridges during Roman times. The Roman doctrine of “patria potestas” gave fathers nearly absolute power to do whatever they wished to and with their children, making them the most unprotected class of all. From the middle ages to the industrial revolution, child labor abuses were common enough to require child labor legislation in both the United States and other countries.

 

In 1874, a New York social worker became involved in the abuse of Mary Ellen Wilson, who had not only been severely beaten, but was also confined with chains and deprived of food by her adoptive parents (Zigler & Hall, 1989). Interestingly, Henry Berg, the head of the Society for the Prevention of Cruelty to Animals, pushed the Mary Ellen case into the court system. Eventually Mary Ellen’s adoptive parents were jailed, and the Society for the Prevention of Cruelty to Children was formed.

 

The general “spark” that fired public and professional interest in the area of child abuse was an article in the Journal of the American Medical Association by C. Henry Kempe where he discussed the term battered child syndrome (Zigler & Hall, 1989). Another significant advancement associated with Kempe’s work was the establishment of the National Center for Child Abuse and Neglect (Kempe, 1998).

 

The McMartin CaseThe initial Child Abuse Case.  In 1983 in a cozy town by the beach in California, a news story broke that accused the McMartin Preschool teachers (including the owner and her son), of sexual abuse of the children in the school. This was one of the first cases of its kind, where there were a number of very young children who were telling their parents and the police about ritual-type sexual abuse involving devil worship and the like.

 

The psychotherapists who conducted the interviews of the children and the families involved had very few guidelines to follow, and were pioneers who were paving the road for those who were to follow. These therapists taught us new ways to avoid the pitfalls of interviewing young children who were telling adults of abuse. They set a new stage for how to do protective and effective interviews (to be discussed below).

 

In the McMartin case, there were 207 counts of conspiracy and molestation with 60,000 pages of court records. Testimony was taken up to five years after the abuse was claimed, which made the testimony less credible. None of the defendants was found guilty.

 

Child Abuse Interviews and Preparing for Testifying

 

An interviewing protocol is a group of procedures used to receive information from potential child victims of sexual abuse. As mentioned earlier, the interviewers in the McMartin case and other interviewers have come under attack. Warren, Woodall, Hunt, and Perry (1996) reviewed failed prosecutions and convictions that were overturned because of potentially suggestive pretrial techniques used in questioning possible child victims. Despite the fact that there is no single accepted protocol for interviewing suspected victims of child sexual abuse, various techniques that seem benign have been called into question (Kemp, 1998).

 

Using research along with suggestions from expert interviews of sexually abused children, L, Dennison Reed (1996) developed general guidelines for interviews to reduce the risk of accusations about suggestive or coercive interview techniques. These are summarized below:

 

 

Interviewing Guidelines: Suspected Child Abuse

 

 

Setting

 

  • Make the child feel comfortable by doing the interview in a place where he or she feels comfortable

 

Interviewer behavior and attitude

 

  • Keep an open mind
  • Remain friendly
  • Build rapport before exploring sensitive issues

 

Clarify your expectations

 

  • Emphasize being truthful, not pretending
  • Make certain to tell the child you do not know anything about the case yet
  • Let the child admit not knowing anything
  • Let the child admit to not remembering rather than guessing
  • Assure the child when you repeat a question it does not mean his or her answer was wrong
  • Give the child permission not to answer any questions
  • Encourage the child to disagree with you
  • Encourage the child to correct you when you make mistakes

 

Be thoughtful about how you ask your questions

 

  • Keep in mind it is easy to mislead a child in any direction
  • Keep questions developmentally appropriate
  • Avoid repetitive suggestions
  • Avoid leading or coercive questions
  • Begin with open-ended questions
  • Document questions and responses

 

Attempt to corroborate

 

  • Try to collect whatever material evidence there is that corroborates child’s testimony

 

 

MacFarlane and Feldmeth (1988) made an excellent film with an accompanying brochure after the McMartin preschool case ended. Their fine work added to the information on child sexual abuse interviews with regard to protection of the psychotherapist, the child, and the prosecution case in general. They make the following suggestions, some of which repeat the suggestions of Reed (1996). MacFarlane and Feldmeth (1988) suggest:

 

 

 

Additional Suggestions

 

 

Avoid (due to attacks in court)

 

  • Hypnosis
  • Age regression
  • Use of family photographs
  • Anatomically correct dolls
  • Dream interpretation
  • Guided imagery

 

In the interview process with child

 

  • Avoid assumptions
    • “This child has the profile of a child who has been sexually abused because he has suddenly begun soiling himself…”
    • “This child has had three urinary infections so she must be experiencing sexual abuse…”
  • Get second and third opinions
    • Call another clinician
  • Get expert consultations
    • Call child abuse hotline for a consultation
    • Call an expert clinician
    • Call the ethics committee
    • Call your insurance company
  • Do not make suggestions
    • “Why don’t you tell your teacher tomorrow?”
    • “Why didn’t you run away?”
  • Stay completely neutral
    • “That is the worst story of abuse I have ever heard!”
    • “I feel so sorry for you!”
    • “I am going to call your mother right now!”
  • Consider the influences of other, outside events
    • Have the parents recently gotten a divorce?
    • Is there family strife?
    • Has a natural disaster occurred recently?
    • What else is going on in the child’s life?
    • Consider everything else
  • Document everything, especially quotes from family members and the child him or herself
  • Consider videotaping or audiotaping sessions
  • Do not ask leading questions
    • “Did he touch you here or there?”
    • “When did he touch you?”
    • “What did you do when she touched you?”
    • All of these questions imply the child was touched and require a positive answer
  • Do not ask “tag” questions
    • “You feel bad, don’t you?”
    • “Someone touched you, didn’t she?”
    • The tag portion (in bold) requires a positive or negative answer such that the child is forced to respond
  • Do not coerce the child
    • In some interviews, the psychotherapist doing the interview was attacked for “coercing” the child by giving a lollipop, a hot chocolate, or a kind word
    • Also, telling a child something like “your mommy will be happy if you tell me what happened…” is a coercive statement
  • Avoid any trace of contamination
    • In the McMartin case, since this type of interview was new to everyone involved, the families were so upset, they met together to discuss the abuse of their children. Later, the defense attorneys claimed the “evidence” and testimony of the children had been contaminated because the children and families had “shared” information and it was not fresh for each person.
  • Do not reinforce the child in any possible manner
    • This is similar to coercion of the child. Do not encourage the child to tell you something unless or until he or she is ready, or unless there is actually something to tell.

 

 

Preparing to Testify

 

Before one testifies, it is important to distinguish between the two different possible roles a psychotherapist may be asked to play – a fact/percipient witness or an expert witness (Harmell, 1998). A fact witness is not much different from a person who is called upon to give testimony in a case where he or she saw two cars hit each other and is called upon to give the facts of the collision. Except here, the fact/percipient witness who is a psychotherapist simply reports upon the facts as he or she observed them within the psychotherapy relationship. In this case, the psychotherapist does not give a professional opinion (Harmell, 1998; Stromberg et al., 1988).

 

The other role an LCSW may be asked to perform is that of an expert witness. In this role, the psychotherapist can do many tasks, from advising the litigant and her attorney about a particular topic, to preparing them for the case at hand, to testifying in court as an expert on a particular topic or several topics. Experts are not familiar with the people in the case prior to the legal issues for which they are hired to consult, otherwise they would not ethically be an expert witness on this particular case. Expert witnesses are never paid based upon whether the attorney and client win the case. Expert witnesses are paid on an hourly basis for their professional work only (Harmell, 1998; Stromberg et al., 1988).

 

 

FACT/PERCIPIENT WITNESS

 

 

EXPERT WITNESS

 

 

Get their professional hourly rate

 

 

Hired, generally by the attorney, for the expertise of the psychotherapist

 

 

Discuss only the facts of the case as they understand them

 

 

Discuss opinions based upon expertise, knowledge, training

 

 

Some professionals negotiate a separate fee due to having to cancel other patients in order to attend court and travel time

 

 

Negotiate professional fees based upon standard of care

 

 

CONSULT

 

Receive fees based on hourly rate, not outcome of case

 

 

Partner Abuse / Domestic Violence and Child Abuse

 

California Family Code uses the terminology “domestic violence” despite the more contemporary terminology “partner abuse” being used today. This Code defines domestic violence as:

 

Intentionally or recklessly causing bodily injury, or sexual assault. Placing in reasonable apprehension of serious imminent bodily injury.

 

Some examples may include:

 

  • Disturbing the peace of another person
  • Destroying personal property of another
  • Physical assault of any kind
  • Hitting, slapping, shoving, throwing things, kicking, spitting, etc.
  • Threatening another person

 

Report domestic violence. In California, mandated reporters must report Emotional Maltreatment, if the domestic violence/partner abuse occurs in front of the child, or causes family problems under any of the other elements of child abuse.

 

Confidentiality and minors. Under California laws, only the adult in authority can give consent for treatment in the case of a minor. That adult can be a parent, or a “guardian” which has a somewhat uncertain definition. According to Black’s Law Dictionary (p. 282):

 

One who has the legal authority and duty to care for another’s person or property, especially because of the other’s incapacity or disability; a guardian may be appointed either for all purposes or for specific purposes.

 

(Please note that the term “parent” is never mentioned here.)

 

Review of Terms Related to Confidentiality and Privilege

 

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

 

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

 

Laws Related to Privilege with Minors – Holder of Privilege

 

  1. Patient holds privilege – This refers to the primary patient. Notice “parent” is not mentioned anywhere here (This will be discussed in the section on minors)

 

  1. Guardian holds privilege – One who has legal authority for incapacitated person (p. 282).

 

The authors of this bill may have wished the holder of privilege to be ambiguous about minors and the holder of privilege in that they wanted the holder of the privilege to be decided on a case-by-case basis depending upon the facts of each case. Otherwise, the authors of the bill wanted the “patient” in Section (a) to refer to any patient including a minor patient. At present, we do not know what the authors had in mind for patients who were minors.

 

In any event, psychotherapists who work with children and families, especially adolescents and teens, know how to negotiate with parents in order to decide in advance how to appropriately work in the best interests of the minor patient with issues of confidentiality. This is certainly an “art” not a science!

 

Remember that Federal HIPAA law supersedes State law UNLESS state law gives the patient more protection.

 

For a concise explanation of HIPAA’s regulations for privacy with minors, click on the following link:

 

University of Miami Privacy/Data Protection Project.

 

The Privilege Controversy in California

 

Daniel v Daniel (1990) 220 Cal.App.3rd 814

 

In a little known case of a son against his father, a California judge made a decision that became case law with regard to privilege in the case of a minor, when the minor has been abused by his father and refuses to release his own psychotherapy records.

 

During a bitter divorce proceeding, an eight-year-old boy disclosed to his psychologist, who was also the family therapist, that his father had abused him sexually; he then told the therapist not to disclose any of this private information in court. After reporting the abuse to the Department of Child and Family Services, the psychologist claimed the privilege for young Daniel, refusing to testify as requested by her young patient.

 

The judge, aware of this situation, appointed an independent evaluator to evaluate young Daniel for possible abuse. The independent evaluator concluded abuse had, indeed, occurred to young Daniel, and reported this to the judge. The father objected to all the therapist’s reports, and demanded, through his attorney, all of young Daniel’s therapy records.

 

Daniel’s father was given the independent evaluator’s reports, as they were part of the court record, but the judge appointed young Daniel his own legal representation, who, under Family Code 2151 a & c has “the right to assert or waive any privilege on behalf of the child.”

 

The judge eventually upheld young Daniel’s privilege with the original psychologist.

 

The attorney at the time for the California Association of Marriage and Family Therapists (CAMFT), wrote an article that interpreted Daniel very narrowly with regard to privilege and minors at the time (see The California Therapist, March-April, 2001), and which has been largely disputed by other experts:

 

If your patient is a minor child, he or she holds the privilege. A minor’s parents do not

hold the privilege for the minor… the only time a parent could possibly hold the privilege is if the court… appoints the parent as a guardian ad litem. If your patient is a minor…be careful… the parent can only hold the privilege if appointed as guardian ad litem. (Pelchat, p. 15)

 

The CAMFT article took a very absolute position, and began a public letter-writing discussion with a psychologist and his attorney who are both well-respected experts in ethics and legal issues of this nature. If you are interested in this lively exchange, see The California Therapist, March-April, 2001, and The California Therapist, September-October, 2001.

 

The judge in Daniel quoted Evidence Code 1013, noting, “Statutes do not specifically mention who holds the privilege when the patient is a minor. Case law does suggest a minor child is entitled to privacy granted by the privilege.”

 

Conclusion

 

As always, when unsure, consult with the experts who know about Daniel. Case law only refers to situations that are extremely similar to the original case. Unless the case in point has similar facts, issues, or situations, then the original case law is not applicable. The Daniel case can only be applied to situations where the facts include a child who does not wish to share facts of abuse, possibly with a father or family member. A criticism of the CAMFT article’s interpretation of Daniel was that it absolutely applied Daniel case law to all cases of minors and confidentiality without consideration of the facts of the individual case. Many experts believed this was too broad an interpretation of Daniel. In other words, the article professed the minor – no matter what age, no matter what situation – holds his or her own privilege. According to CAMFT, the parent never holds the privilege unless appointed as guardian ad litem by a judge. As of this writing, experts consulted hold varying opinions about minors and privilege with regard to Daniel. Consult on a case-by-case basis.

 

Since confidentiality can be negotiated with the family and the minor, it is important to discuss this in advance with all involved. Privilege is the legal aspect of the confidential communications between the psychotherapist and the patient; thus, both issues need to be addressed within the context of the informed consent issues.

 

Social Work Codes that apply to Child Abuse

 

NASW Code of Ethics

 

Standard 1.07(A-R) – Privacy and Confidentiality

 

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

 

     SWs do not solicit information from clients unless they wish to disclose such information.

     SWs need valid consent to disclose any private patient information.

     SWs may breach in cases of danger to patient, others, etc.

     SWs should try to give informed consent regarding disclosures.

     SWs should discuss limitations to confidentiality prior to treatment.

     SWs are cognizant of the difficulties of confidentiality with multi-client situations (group, couple, and family).

     SWs inform patients about disclosures to referring employers.

     SWs do not disclose information to third party payers without permission.

     SWs do not discuss confidential information in public places.

     SWs protect confidential information in legal procedures.

     SWs protect confidential information in media settings.

     SWs are careful using technology for record storage.

     SWs are careful using technology for record transmittal.

     SWs dispose of records properly.

     SWs take care to protect patient’s records in case of the therapist’s termination, incapacitation, or death.

     SWs protect patient information in teaching or training lectures.

     SWs do not disclose identifying patient information when receiving consultation.

     SWs protect confidences of deceased patients.

 

CSWA Code of Ethics

 

Standard III (b) – Confidentiality

 

(b) Mandatory reporting obligations may include, but are not limited to; the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); and, any duty to report the misconduct or impairment of another professional. (CSWA, 2006, p. 8)

 

SECTION G: ELDER ABUSE

 

The following are Federal resources related to elder abuse:  

 

National Center on Elder Abuse

 

ELDER JUSTICE ACT

 

The Elder Justice Act does the following:

 

Elevates elder justice issues to national attention

Grant making

Public-private and a coordinating Council to coordinate activities of all relevant federal agencies, states, communities and private and not-for-profit entities

A consistent funding stream and national coordination for Adult Protective Services (APS)

 

Improving quality, quantity and accessibility of information - Elder justice resource center and library for consumers, advocates, researchers, policy makers, providers, clinicians, regulators and law enforcement. A national data repository for data collection on abuse.

 

Increasing knowledge & supporting promising projects – Given the paucity of research, centers of excellence will enhance research, clinical practice, training and dissemination of information relating to elder justice. Priorities include a national incidence and prevalence study, jump-starting intervention research, developing community strategies to make elders safer, and enhancing multidisciplinary efforts.

 

Developing forensic capacity – There is scant data to assist in the detection of elder abuse, neglect and exploitation of elders. Creating new forensic expertise similar to child abuse to promote detection and increase expertise by training professionals in both forensic pathology and geriatrics.

 

Victim assistance, “safe havens,” & support for at-risk elders - Elder victims’ needs, which are rarely addressed, will be better met by supporting creation of “safe havens” for seniors who are not safe where they live and development of programs focusing on the special needs of at-risk elders and older victims.

 

Increasing prosecution – Technical, investigative, coordination, & victim assistance resources will be provided to law enforcement to support elder justice cases. Support for community policing efforts to protect at-risk elders.

 

Training – Training to combat elder abuse, neglect & exploitation is supported both within individual disciplines and in multidisciplinary settings (such as public health, social service, law enforcement).

 

Special programs to support underserved populations including rural, minority, and Native American seniors.

 

Model state laws & practices – A study will review state practices and laws relating to elder justice.

 

Increasing security, collaboration, and consumer information in long-term care

Improving prompt reporting of crimes in long-term care settings

Criminal background checks for long-term care workers

Enhancing long-term care staffing

Information about long-term care for consumers through a long-term care consumer clearinghouse

Promoting accountability through a new federal law to prosecute abuse and neglect in nursing homes

 

Evaluations & accountability – Provisions to determine “what works” and assure funds are properly spent.

 

Testimony before the U.S. Senate Committee on Finance

 

Catherine Hawes, Ph.D., Professor, Texas A&M June 18, 2002

 

“I saw a nurse hit and yell at the lady across the hall because the nurse told the lady she didn’t have all day to wait on her. The lady made some remark. The nurse hit the lady and said ‘shut up.” Georgia Nursing Home Resident(Atlanta, 2000)

 

“Have I seen abuse? No, not directly. But I’ve come in and found my mom battered and bruised. I mean, l saw her whole face was bruised and swollen, the backs of her hands and arms were bruised, as if she tried to protect herself.” Daughter of a Texas Resident, 2000

 

“Oh, yeah. I’ve seen abuse. Things like rough handling, pinching, pulling too hard on a resident to make them do what you want. Slapping, that too. People get so tired, working mandatory overtime, short-staffed. It’s not an excuse, but it makes it so hard for them to respond right.” Nurse from Carolina, 2001

 

“They throw me like a sack of feed… and that leaves marks on my breasts.” Georgia Nursing Home Resident, 2000

 

“My roommate – they throw him in the bed. They handle him any kind of way. He can’t take up for himself.” Georgia Nursing Home Resident, 2000

 

Federal definitions of elder abuse appeared for the first time in the 1987 Amendments to the Older Americans Act. These definitions were guidelines for identifying problems, not for enforcing laws. Currently, state laws define enforcement of elder abuse and they vary considerably from state to state. The following is a link for current information:

 

National Center on Elder Abuse

 

Generally, domestic elder abuse and neglect refers to several forms of maltreatment of an older person by someone who has a special relationship with the older person such as a spouse, sibling, caregiver, or in-home worker. Institutional abuse and neglect refers to any of the same abuses that occur in residential facilities for older persons such as nursing homes, foster homes, group homes, and board and care facilities.

 

Various Forms of Elder Abuse

 

The following link provides a table with a state-by-state listing of mandated reporters: http://www.rainn.org/public-policy/legal-resources/mandatory-reporting-database Check whether you are a mandated reporter in your state. For further details on state reporting laws you will need to search the Internet using the keywords: elder abuse reporting laws & state name.

 

Physical Elder Abuse – MANDATED REPORT

 

  • Inexplicable weight loss
  • Wounds, cuts, abrasions, burns
  • Black eyes, laboratory findings of medication overdose
  • Bruises, welts, swelling
  • Broken bones, broken eyeglasses
  • Sudden, inexplicable weight loss
  • Unwarranted restraints
  • Specific complaints by elder
  • Sprains, various stages of healing
  • Any sexual abuse
  • Bloody sheets, underclothing
  • Bruised genital area, breasts

 

Mental Elder Abuse is PERMITTED to be reported, NOT MANDATED

 

  • Fear, agitation, hesitancy
  • Depression, withdrawal
  • Sudden behavioral changes
  • Unusual behavior patterns
  • Unwillingness to communicate
  • Disorientation, confusion
  • Unjustified isolation
  • Rude, humiliating, derogatory comments made to elder
  • Specific complaints by elder
  • Any threats, intimidation, or harassment

 

Neglect of Elder – MANDATED REPORT

 

  • Unsanitary environment
  • Malnutrition, dehydration
  • Smells of urine and/or feces
  • Unkempt appearance
  • Poor personal hygiene
  • Untreated medical condition
  • Specific complaints by elder
  • Abandonment

 

Exploitation or Financial Abuse of Elder – MANDATED REPORT

 

  • Sudden, unjustified selling of property
  • Missing/stolen money or property
  • Radical changes in handling personal/financial affairs
  • Specific complaints by elder
  • Sudden changes in bank account
  • Additions or inclusion of names to bank signatures
  • Large or small withdrawals from bank account
  • ATM withdrawals
  • Sudden appearance of previously uninvolved relatives
  • Unexplained transfer of funds
  • Forged signatures

 

Self-Neglect by Elder – MANDATED REPORT

 

The behavior of an elderly person that threatens his/her own health or safety. Self-neglect generally manifests itself in an older person as a refusal or failure to provide himself/herself with adequate food, water, clothing, safety, personal hygiene, medication, and safety precautions.

 

  • Dehydration, malnutrition, untreated or improperly attended medical conditions, and poor personal hygiene
  • Hazardous or unsafe living conditions/arrangements (e.g. improper wiring, no plumbing, heat, running water)
  • Unsanitary or unclean living quarters
  • Inappropriate or inadequate clothing
  • Lack of medical aids
  • Grossly inadequate housing or homelessness

 

Who Are Mandated Reporters

 

  • Any person who has assumed full or intermittent responsibility for care of an elder whether or not receiving compensation
  • Any mandated reporter who in his or her professional capacity, or within the scope of his or her employment (see WIC 15610.37 Health Practitioner” definition below):
    • Has observed
    • Has knowledge
    • Or is told by an elder or abuser
    • Or reasonably suspects abuse
    • “Health Practitioner” means a physician and surgeon, psychiatrist, psychologist, social worker, marriage and family therapist.

 

How to Report

 

Click here to find your state elder abuse hotline: State Elder Abuse Hotlines

Or if you are reporting from out of state you can call the National toll-free Elder Care Locator number 800-677-1116

 

AND

 

If required send written report, (check your state for exact requirement on when and where to send written report), to the agency where the hotline recipient of your call tells you to send the written report, as follows:

 

  1. Report to State Dept of Health Service any case of known or suspected abuse in a long-term health care facility

 

  1. Report to State Dept of Social Service any case of known or suspected abuse in residential care facility for elderly

 

  1. Report to State Dept of Health Service and the State Department of Aging cases of abuse in adult day health care center

 

  1. Report to Bureau of Medicare Fraud and Elder Abuse any case of known or suspected criminal activity

 

  1. If the abuse has occurred any place other than one described above, report shall be made to the adult protective services agency or the local law enforcement agency.

 

Failure to Make a Report

 

Violation of this section may be a misdemeanor in your state. Be familiar with your state laws.

 

No Penalty for Good Faith Report

 

As with child abuse, there is no penalty for a good faith report of elder abuse when the psychotherapist has good reason to believe there has been abuse. It is always a good idea to consult with another clinician or expert, and to document in the patient’s file whatever is said in the consult.

 

 

Questions for Reflections

 

 

According the Research quoted here, who are the most likely candidates to abuse elders?

 

  1. Burglars
  2. Their spouses and adult children
  3. Nursing care givers

 

Which is the only type of abuse that is not a mandated to report type of elder abuse, but is a permitted to report type of elder abuse?

 

  1. sexual abuse
  2. mental abuse
  3. financial abuse

 

Psychotherapists who work with children are not mandated elder abuse reporters.

 

  1. True
  2. False

 

Question 2 asks if you must report sexual, mental, and financial abuse as a mandate. All are mandated report situations except (b) mental abuse. For Question 3, anyone who, in his or her capacity as a psychotherapist, hears from an elder he or she has been abused, is a mandated reporter. If an elder brings a child for treatment, and when the elder comes into the room, you notice he has a black eye, you must evaluate the situation. In addition, is the child at risk? If the elder lives with the family, you must consider the child at risk for child abuse as well.

 

 

SECTION H: TERMINATING THERAPY, PATIENT ABANDONMENT,

PROPER REFERRALS

 

Sometimes continued therapy may not benefit the patient, or worse, may be harmful to the patient. The standard of care, demonstrated by CSWA Standard 2A (see below), requires psychotherapists to terminate therapy if it might injure the patient, or if continued therapy fails to benefit the patient. If services are no longer needed, sessions must be terminated in order to avoid risk to the patient (Fisher, 2009). If a psychotherapist is unsure of these issues, he or she must consult with an expert and document the consultation in the patient’s file.

 

Thus, psychotherapists or interns who continue to see patients based on their own financial gain or a need to accrue hours for licensure are violating this standard. Indeed, if the patient is unlikely to benefit from the treatment, the psychotherapist is mandated to end the treatment (Fisher, 2009).

 

CSWA Standard 2a directs CSWs to provide some sort of appropriate pre-termination counseling prior to ending a therapeutic relationship. This includes:

 

     Giving enough advance notice of termination

     Giving the patient enough time to ask questions about the termination

     Discussing in advance the reasons for termination

     Encouraging the patient to ask questions and clear up any misunderstandings prior to the end of treatment

     Providing enough referrals to the patient such that the client will be able to find alternative care (Fisher, 2009)

 

Patient Abandonment

 

When is a “duty of care” established? In Section A, duty of care was defined as an established relationship between the client/patient and the psychotherapist (If you wish a review of the complete description of duty of care, see below.)

 

Duty of care. A Duty of Care arises when there has been an agreement between the psychotherapist and a current client that the pair will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because, after two or three sessions, a patient begins to develop an assumption he or she has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for consideration of longer-term therapy? Is the work being done merely an evaluation using assessment instruments such as a test battery? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief six-week behavior model of treatment? If the parties have not decided whether they wish to work together by the third session or so, and a civil suit should occur, the court may decide for them that a “duty of care” has been established. Exchange of money alone does not establish a duty of care; however, if there is nothing else for the court to consider, it may look at any financial matters in an attempt to establish responsibility.

 

Since a new or naïve client who has never sought psychotherapy may not understand when the duty of care begins, it is mandatory to discuss this thoroughly with the person at the outset of treatment (Van Susteren, 2001). Van Susteren (2001) reviewed a number of interesting legal cases in which the psychotherapist was charged in court with patient abandonment. Two in particular stand out:

 

Brandt v Grubin (1974) – New Jersey

 

A psychiatrist was called in as a consultant to do a one-time evaluation of his opinion for future treatment and current medication management. He recommended long-term psychotherapy and medication with a psychiatrist other than himself. The patient promptly committed suicide. The patient’s family just as promptly sued the psychiatrist for patient abandonment in a malpractice suit. The Appellate Court found that the psychiatrist “completed his task of the patient evaluation and recommendation and had no obligation to expand or deepen his involvement.” Thus, the psychiatrist was not liable for patient abandonment.

 

Osheroff v Chestnut Lodge (1985) – Maryland

 

Dr. Osheroff, a physician, underwent months of ineffective psychodynamic treatment at Chestnut Lodge for major depression. He was eventually given antidepressant medication for his major depression, which helped him improve rapidly. He quickly resumed his normal life, and he found an attorney and sued Chestnut Lodge and the treating staff for patient abandonment and malpractice. Chestnut Lodge offered a settlement out of court that was accepted by Dr. Osheroff.

 

In this Osheroff case, there was a duty to terminate when the treatment failed to help improve the patient. “Continuing to treat a patient long after it is clear the chosen treatment is not working can be seen as the flip side to abandonment. A psychiatrist does have a legal (and ethical) duty not to continue ineffective treatment… the court has described the duty to terminate ineffective or dangerous treatment” (Van Susteren, 2001, p. 12).

 

Psychotherapists must terminate when they recognize that the patient no longer needs the service, or is no longer benefiting, or is even being harmed by the treatment. This requires the psychotherapist review his or her notes, to consult on a regular basis, to remain aware of the progress of treatment, and to stay abreast of new methods being used to treat the patient’s condition.

 

Claims of patient abandonment sometimes arise if psychotherapists do not provide appropriate coverage during off times such as weekends, nights, and vacations. Psychotherapists must be reasonably accessible to patients whom they know are prone to “emergencies” (Tarasoff, danger to self or other) via pager or checking one’s phone message system (voicemail or answering service) (Welfel, 2010).

 

Although the patient is free to terminate whenever he or she wishes, the psychotherapist does not have the same freedom. The psychotherapist has a duty to provide continuity of care unless there is some reasonable reason not to do so (e.g., the psychotherapist becomes ill or has an emergency). Normally, the standard of care in cases of psychotherapist emergency is to place another professional on call in one’s place until the psychotherapist can return to work (Stromberg et al., 1988).

 

Returning Pages and Telephone Calls

 

It is not mandatory to use a pager or beeper system, but it is necessary to check in with one’s answering service or one’s answering machine regularly if a pager is not in use. The standard of care on this subject is not written anywhere, nor is it mentioned in any articles readily found upon a search. Thus, psychotherapists should use their judgment based upon the patient’s diagnosis and personality. For example, if a patient is borderline, then constant telephone calls or pages would be handled differently than telephone calls or pages from a patient with major depression or bipolar disorder. As always, consult and document, and err on the side of caution.

 

The Experts Address Patient Abandonment

 

Canter et al. (1994) comments, “The paramount consideration is a high standard and suggests that financial considerations in agreements will be held to be secondary to the client concerns” (p. 100). She continues, “On the basis of professional practice and literature, abandonment is commonly understood to mean that a client is (a) left without an appropriate resource to turn to when the therapist is unavailable and (b) is discontinued as a client without formal termination and referral as needed” (p. 101). In both these quotes, Canter et al. note that abandonment occurs when the patient is left without proper support and consideration.

 

Welfel (2010) notes that a failure to continue needed psychotherapy services is “abandonment,” and is inappropriate. Psychotherapists may not stop conducting therapy on a “whim,” or out of dislike for or anger at a patient. Welfel advises proper termination if the patient fails to pay for services by giving a proper referral to alternative service, with the psychotherapist facilitating the transition. “If other services are not immediately available, counselors may not abandon clients in need because of nonpayment of fees” (p. 258).

 

Therapists may be sued for patient abandonment for terminating with a patient who still needs therapy, who has been given no suitable substitute, and who suffers damages as a result of the termination (Van Susteren, 2001, p. 1). Because of the caring nature of the relationship between a psychotherapist and his or her client or patient, psychotherapists have a much more broad and complex responsibility than do those in “ordinary” business relationships between customers and their providers. Thus, psychotherapists who wish to end or terminate a therapy relationship with a patient or client must proceed with great caution (Van Susteren, 2001).

 

Proper Termination

 

If the psychotherapist has decided he or she wishes to begin the termination process with a client who has not suggested termination on his or her own, it is a very tricky issue (Van Susteren, 2001). Primarily, the client may feel abandoned and rejected, which is a clinical issue that must be handled in the termination process. Consultation throughout the entire process is suggested in order to aid in a smooth transition and ensure objectivity. Indeed, termination should not be suggested by the psychotherapist until a proper professional consultation has taken place in order to both protect the psychotherapist from being accused of abandonment or retaliation against the patient, and to protect the patient’s best interests in the transition process.

 

Professional consultation is the start of any termination procedure that is initiated by the psychotherapist against the will of the patient. In some cases, the patient will agree to the termination readily, as it is an appropriate next step in the treatment. In other more difficult cases, the patient will balk at the suggestion and become angry and enraged. However the patient reacts, the psychotherapist must be prepared not to weaken and reverse decisions in the face of an angry or upset patient if it is the proper therapeutic course of action.

 

In the case where the psychotherapist has to terminate the psychotherapy in advance of the completion of the client’s/patient/s treatment needs, professional consultants will present guidelines. In the case where HMO or insurance benefits run out (“where the employment or contractual relationship ends”), the psychotherapist puts the needs and the welfare of the patient first.

 

Proper Referrals

 

Although there is a fair amount of literature about accepting referrals (see Shapiro & Ginzberg, 2003), there is very little literature devoted to properly referring a patient out of one’s practice. Most attorneys will advise you to consider the following three issues when making referrals to any patient, especially one whom you have chosen to terminate (Stromberg et al. 1988; Behnke, Preis & Bates, 1998):

 

  • Give referrals that are available
    • The referral must be contacted by the psychotherapist to establish that he or she is taking new individual, family, or couple patients of the type, diagnosis, age, etc. you are referring

 

  • Give referrals that have a similar fee structure as the referring psychotherapist
    • Standard of care requires that the original psychotherapist refer the patient to another professional with an affordable fee similar to the fee the original psychotherapist charged

 

  • Give referrals that have a “standard of care” theoretical orientation
    • It is appropriate to refer the patient to another professional who works within the established and acceptable boundaries of normal practice (Stromberg et al. 1988; Behnke, Preis & Bates, 1998)

 

The client should be given a reasonable amount of time to establish a relationship with the new therapist by allowing for the availability of the former psychotherapist in case of a crisis or emergency situation. Consultation will help establish a proper period of time for availability after the close of therapy, based upon DSM diagnosis and patient reaction. This is most certainly a situation in which a psychotherapist should seek expert and legal consultation in order to avoid areas of legal and ethical vulnerability due to patient abandonment.

 

Terminating the Patient Who Presents a Serious Danger to the Psychotherapist

 

Gentile, Asamen, Harmell, and Weathers (2001) did research on clients who stalk their psychologists (the research was performed on subjects who were psychologists). Ten percent of psychologists responded to the survey research from a subject pool of thirty psychologists. Psychologists who were stalked had no specific demographics. However, clients who stalked their psychologists had very specific demographics. The results of the research found that the client stalkers demographics were:

 

  • 80% single or divorced at the time of the stalking
  • 94% Caucasian
  • 93% graduated high school or had a GED
  • 62% had mood disorders
  • 76% had personality disorders
  • 64% had Borderline Personality Disorder
  • 79% had one or more negative childhood experiences with a caregiver
  • 68% underwent childhood abuse: emotional, physical, or a mixture
  • 73% had one or more recent losses or stressors
  • 41% experienced a divorce or breakup of an intimate relationship

 

Meloy (1996) discussed therapist-stalking using the term “obsessional following” as the clinical equivalent of the legal term stalking. Zona, Sharma and Lane defined obsessional following as “abnormal long-term pattern of threat or harassment directed toward a specific individual” (1993, p. 896). Gentile, Asamen, Harmell, and Weathers (2001) pinpointed the steps that the psychologists who were stalked took to protect themselves during and after the staking incident. The authors suggest these steps be taken by all psychotherapists who are in clinical practice.

 

  • Have an unlisted home address and phone number
  • Maintain a home alarm security system
  • Maintain an office security alarm system
  • Avoid a home-based clinical practice
  • Urban therapists should live in a separate town from their clinical practice
  • Immediate contact with the anti-stalking task force for advice when a problem occurs

 

History of How This Applies To Psychotherapists and Which Ethics Codes Apply

 

It was in 1989 when Erik and Lyle Menendez threatened their psychologist’s life in Beverly Hills, California. Erik, the younger brother, confessed to in the psychologist’s office to murdering his parents. The psychologist made an audiotape of everything he could remember about the confession, and placed it in a safe deposit box, thereby attempting to protect his own life and the lives of his family and others associated with him. When both brothers began coming to sessions to discuss their rationale for murdering their parents, the psychologist told them about the audiotape, informing them the tape would remain in the safe deposit box unless “anything were to happen” to the psychologist, his family or anyone associated with him.

 

Earlier, when the older brother, Lyle, whom the psychologist believed was the more dangerous brother, had discovered that Erik had confessed the murders to their psychologist, Lyle came to the session and made threats to the psychologist and “everyone associated with him” in the presence of Erik. Unbeknownst to the brothers, the psychologist had asked his girlfriend to “eavesdrop” on the session from his waiting room, worrying that he might hear a confession. Once he was in receipt of the confession, the psychologist set about protecting himself and his family (and his girlfriend) while continuing to see the brothers.

 

Lyle asked to have one of the “therapy sessions” audiotaped in order to prepare a “defense,” as the police were quickly closing in on the brothers as primary suspects. When the psychologist’s girlfriend went to the Beverly Hills police to report the psychologist had audiotapes of the “sessions” with the Menendez brothers, the police quickly got a court order to confiscate the tapes.

 

Shortly thereafter, the brothers were arrested for the murder of their parents. Since the main defense in the case was child sexual abuse, the “session” tapes were expected to be full of complaints of childhood memories of sexual abuse within the family, especially between the father and the sons. Upon reviewing the tapes, sexual child abuse was never mentioned on the tapes, not once.

 

During the trial and trial preparation, there were several appeals as to whether or not the audiotapes of the “sessions” should be allowed into the trial as evidence. The defense team, of course, tried to apply patient-therapist privilege to the tapes, as they wished the tapes to be left out of the trial, because of they lacked evidence to back up the defense that claim the boys murdered their parents because they were sexually abused all their lives.

 

Naturally, the prosecution wanted the tapes in court to prove there was no sexual abuse, as it was never discussed with the psychologist as a reason for murdering their parents. After nearly four years of back and forth appeals, the appellate court made a decision: The tapes of the “sessions” would be allowed into court as evidence and would not be protected by patient-therapist privilege. This was because once the psychologist was threatened by the brothers, the psychologist was no longer conducting therapy with these patients. Once a psychotherapist is threatened by a patient, therapy can no longer occur, according to the final decision by the appellate court. Thus, the taped session, having come after the threat, was not taping a therapy session at all, so patient-therapist privilege did not apply to the taped “discussion” with their psychologist.

 

How This Decision was Integrated Into the 2002 Ethics Code

NASW Code of Ethics 1.16 (AF) and CSWA Code of Ethics 2a direct social workers to help patients seek care if the psychotherapist is unwilling or unable, for some reason, to provide continued care. This is the closest social work codes come to addressing terminating a dangerous patient when the patient threatens the therapist. Therefore, I will use the American Psychological Association Code of Ethics for psychologists, where it is discussed in detail, to discuss this eventuality.

 

APA 10.10 (b) allows psychologists to terminate abruptly when the psychologist, or someone close to the psychologist, is being threatened by the patient. Neither advance notification of termination nor pre-termination counseling is required when the psychologist is being threatened by the patient (Fisher, 2009).

 

Fisher (2009) states, “a noteworthy change in the 2002 (APA) Ethics Code is the elimination of the 1992 (APA) code’s broadly worded prohibition against abandoning the client.” Termination based on reasonable professional judgment, and proper pre-termination counseling, is ethically appropriate.

 

The 1992 Ethics Code was more rigid about taking time to make certain the client/patient was established with a replacement psychotherapist prior to termination in the case of danger to therapist. As Fisher (2009) notes, the new 2002 code is much more lenient. We may speculate the Code was made more lenient here specifically due to cases such as the Menendez brothers where the psychotherapist’s life is threatened, or stalking occurs. There is not always time, nor is it always wise to take the time, to continue seeing a patient whom the therapist believes is dangerous to the psychotherapist or someone with whom the psychotherapist has a relationship.

 

REMINDER: There is no specific social work standard that directly corresponds to APA 10.10, so if a social worker is faced with such a dilemma, please consult with an expert and document the record.

 

Social Work Ethics Codes that apply to Proper Termination

 

NASW Code of Ethics

 

Standard 1.16 (A-F) – Termination of Services

 

(a) Terminate services when they are no longer needed.

 

(b) Do not abandon patients who are still in need of services. Minimize possible adverse effect and assist in making appropriate arrangements for continuation of services.

 

(c) Patients who have an overdue bill may be terminated if given appropriate notice in financial contractual arrangements first and they are not a danger to self or others.

 

(d) Do not terminate in order to begin a social or sexual relationship.

 

(e) When termination or interruption is anticipated (e.g., HMO, Insurance ending), appropriate transfer or provision should be made.

 

(f) When leaving an agency, appropriate provisions for patients should be made.

 

CSWA Code of Ethics

 

Standard 2a – Practice Management and Termination

 

(a) CSWs only continue treatment with a patient as long as the service is benefiting the patient and is in the patient’s best interests. When interruption is anticipated, reasonable notice is given.

 

REFERENCES

 

REFERENCES: Section A

 

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

 

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

 

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

 

Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: Ethical, legal & clinical considerations. Ethics & Behavior, 4, 43-57.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

National Association of Social Work. (1999). Code of Ethics.

 

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

 

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

 

Section B: REFERENCES

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

REFERENCES: Section C

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Corey, G., Corey, M., & Callanan, P. (2007). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

REFERENCES: Section D

 

Applebaum, P., & Guthiel, T. (1991). Clinical Handbook of Psychiatry & Law. Baltimore: Williams & Wilkins.

 

Behnke, S., Preis, J., & Bates, R. (1998). (1998) The essentials of California mental health law. New York: W.W. Norton.

 

Clayton, S., & Bongar, B. (1994). The use of consultation in psychological practice: ethical, legal, and clinical considerations. Ethics & Behavior, 4, 43-57.

 

Cummings, N. (1995). Unconscious fiscal convenience. Psychotherapy in Private Practice, 14, 24-25, Pacific Grove, CA: Brooks/Cole.

 

Falender, C. A., & Shafranske, E. P. (2004). Clinical supervision: A competency-based approach. Washington, DC: American Psychological Association.

 

Kapp, M. (1987). Interprofessional relationships in geriatrics: Ethical & legal considerations. Gerontologist, 27, 547-552.

 

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

 

Welfel, E. (2010). Ethics in Counseling and Psychotherapy: Standards, Research & Emerging Issues. Pacific Grove, CA: Brooks/Cole.

 

REFERENCES: Section E

 

Benningfield, A.B. (1994). The impaired therapist. In G.W. Brock (Ed.), American Association for Marriage & Family Therapy Ethics Casebook (pp. 131-139). Washington, DC: Amer. Assn. for Marriage & Family Therapy.

 

Borys, D. (1994). Maintaining therapeutic boundaries: The motive is therapeutic effectiveness, not defensive practice. Ethics and Behavior, 4 267-273.

 

Borys, D., & Pope, K. (1989). Dual relationships between therapist and client: A national study of psychologists, psychiatrists, and social workers. Professional Psychology: Research and Practice, 20, 283-293.

 

Bouhoutsos, J., Holroyd, J., Lerman, H., Forer, B, & Greenberg, M. (1983). Sexual intimacy between psychotherapists and patients. Professional Psychology: Research & Practice, 14,185-196.

 

Corey, G., Corey, M., & Callanan, P. (2007). Issues & Ethics in the Helping Professions. Pacific Grove, CA: Brooks/Cole.

 

Emerson, S., & Markos, P. (1996). Signs and symptoms of the impaired counselor. Journal of Humanistic Education and Development, 34, 108-117.

 

Epstein, L., & Feiner, A. (1979). CT: The therapist’s contribution to treatment. Contemporary Psychoanalysis, 15, 489-513.

 

Grossman, C. (1965). Transference, CT, and being in love. Psychoanalytic Quarterly, 34, 249-256.

 

Harmell, P.H. (Sep-Oct, 1998). Multiple multiple relationships relationships. The Los Angeles Psychologist.

 

Harmell, P.H. (1987). The Effects of Therapist Self-awareness of Counter-transference. Unpublished doctoral dissertation.

 

Heimann, P. (1950). On counter transference. International Journal of Psychoanalysis, 31, 81-84.

 

Kernberg, O. (1965). Notes on counter transference. Journal of the American Psychoanalytic Association, 13, 38-56.

 

Koocher, G., & Keith-Spiegel, P. (1998). Ethics in Psychology. NY:Oxford University Press.

 

Langs, R. (1982). CT & the process of cure. In: S. Slipp (Ed.) Curative Factors in Dynamic Psychotherapy. pp. 127-152. NY: McGraw-Hill.

 

Olarte, S. (1997). Sexual boundary violations. In The Hatherleigh guide to ethics in therapy (pp. 195-209). NY: Hatherleigh Press.

 

Racker, H. (1953). A contribution to the problem of CT. International Journal of Psychoanalysis, 34, 313-324.

 

Sonne, J. (1994) Multiple relationships: Does the new ethics code answer the right question? Professional Psychology: Research and Practice, 25, 336-343.

 

Stadler, H. A. (1990). Counselor impairment. In B. Herlihy & L. Golden (eds.), AACD ethical standards casebook (4th ed.) (pp. 177-187). Alexandria, VA: American Association for Counseling and Development.

 

Steinman, S. O., Richardson, N. F., & McEnroe, R. (1998). The Ethical Decision-Making Manual for Helping Professionals. Pacific Grove: Brooks/Cole.

 

REFERENCES: Section F

 

Department of Justice (2002). Child Prevention Handbook… and Intervention Guide. www.safestate.org (download Child Prevention Handbook)

 

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

 

Harmell, P.H. (1998, May-June). But I can't testify in court! I'm not a forensic psychologist! The Los Angeles Psychologist.

Kemp, A. (1998). Abuse in the Family. Pacific Grove, CA: Brooks/Cole

 

MacFarlane, K. & Feldmeth, J. (1988). The clinical interview, response, child sexual abuse. NY: Guilford

 

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

 

Reed, L. (1996). Findings from research on children's suggestibility and implications for conducting child interviews. Child Maltreatment, 1, 105-120.

 

Warren, A., Woodall, C., Hunt, J., & Perry, N. (1996). It sounds good in theory, but… do investigative interviewers follow guidelines based on memory research? Child Maltreatment, 1, 231-245.

 

Zigler, E. & Hall, N. (1989). Physical abuse of children in America: Past, present, and future. In D. Cicchetti and V. Carlson (Eds), Child maltreatment: Theory and research on the causes and consequences of child abuse and neglect. NY: Cambridge University Press.

 

REFERENCES: Section G

 

Anetzberger, G. J. (2000). Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America. Washington: DC: National Academies Press.

 

Bornat, J. (1994). Reminiscence Reviewed. San Francisco: Taylor & Francis.

 

Catherine Hawes, Ph.D. Department of Health Policy & Management, School of Rural & Public Health Texas A&M University System Health Science Center

 

Erikson, J., & Conidaris, M. (2001). California Laws for Psychotherapists. Los Angeles: Legal Books Dist.

 

Fisher, C. (2009). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.

 

Moon, A., & Williams, O. (1993). Perceptions of elder abuse & help-seeking patterns among African-American, Caucasian American, Korean-American elderly women. The Gerontologist, 33, 386-395.

 

REFERENCES: Section H

 

Behnke, S., Preis, J., & Bates, R. (1998). The Essentials of California Mental Health Law. NY: Norton.

 

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

 

Department of Justice (2000). Child Prevention Handbook… and Intervention Guide. http://www.safestate.org/ (download Child Prevention Handbook)

 

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

 

Falender, C. A., & Shafranske, E. P. (2004). Clinical supervision: A competency-based approach. Washington, DC: American Psychological Association.

 

Fisher, C. (2009). Decoding the Ethics Code: A Practical Guide for Psychologists. Thousand Oaks, CA: Sage.

 

Harmell, P.H. (2000, Jul-Aug). Update on current elder and dependent abuse laws. The Los Angeles Psychologist.

 

Harmell, P.H. (1998, May-June). But I can’t testify in court! I’m not a forensic psychologist! The Los Angeles Psychologist.

 

Kemp, A. (1998). Abuse in the Family. Pacific Grove, CA: Brooks/Cole.

 

Large, M. (1999). Changes to the Child Abuse Laws. The California Psychologist,

 

MacFarlane, K. & Feldmeth, J. (1988). The Clinical Interview, Response, Child Sexual Abuse. NY: Guilford Publications.

 

Pope, K., & Vasquez, M. (1998). Ethics in Psychotherapy and Counseling (2nd ed,). San Francisco: Jossey-Bass.

 

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

 

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

 

Warren, A., Woodall, C., Hunt, J. & Perry, N. (1996). It sounds good in theory, but… do investigative interviewers follow guidelines based on memory research? Child Maltreatment, 1, 231-245.

 

Welfel, E. (2010). Ethics in Counseling and Psychotherapy. Pacific Grove, CA: Brooks/Cole.

 

Zigler, E., & Hall, N. (1989). Physical abuse of children in America: Past, present, and future, In D. Cicchetti and V. Carlson (Eds.), child maltreatment: Theory and research on the causes and consequences of child abuse and neglect. NY: Cambridge University Press.



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