LAW AND ETHICS FOR CALIFORNIA MARRIAGE AND FAMILY THERAPISTS (MFTs): GENERAL REQUIREMENTS
(6 hours $19)
INTRODUCTION
This course is intended to familiarize the student with the legal and ethical issues in psychotherapy, and is specifically intended for marriage and family therapists in California. Thus, this course will include many specifics from applicable state and federal laws, as well as from the ethical codes of the California Association of Marriage and Family Therapists and the American Association of Marriage and Family Therapists.
Laws, regulations, and ethical guidelines figure very importantly in the conduct of psychotherapists and other professionals. Laws and regulations serve a variety of purposes. These purposes are as concrete as the equity transfer of taxes and licensing fees that support communities and help to maintain the regulatory infrastructure, and as esoteric as serving the mandates of constitutional law. Of course, they are mostly for the more obvious purposes, those of protecting the public and improving mental health.
History
Known ethical standards for healers date back to the Hippocratic Oath, developed roughly 2,500 years ago1 and even farther back to the Nigerian healer’s code.2 Attempts to regulate professions have a long history, and many have been triggered by problems with the conduct of the professionals themselves, as is discussed in the section on boundaries. Enforcement ranges from sanctions such as letters of warning, to punishments that can include loss of license, fines and imprisonment.
Marriage and family therapists were first licensed in California in 1964. The licensing laws have evolved to include higher education and experience requirements, rules of professional conduct and licensing exams. There are now roughly 27,000 licensed marriage and family therapists in California.4
Nature of Laws
Laws pertaining to psychotherapy can be found in various statutes and codes that serve a variety of purposes such as maintaining confidentiality and requiring adequate levels of training. There are also laws collected together under the rubric of professional conduct. Violations constitute unprofessional conduct, for which there are various enforcement measures.
In the United States, state boards have the primary responsibility to regulate professional behavior. In California, the Board of Behavioral Science regulates mental health professions, including marriage and family therapists. There are numerous laws and regulations that give this board the power and responsibility, as well as the specific procedures, for the regulation of the professionals under its authority. The board itself must obey numerous laws and regulations pertaining to its conduct. The board’s regulatory responsibilities include reviewing complaints from the public, issuing sanctions and even working with law enforcement when necessary.
Principles & Perspectives
The student is encouraged to participate in this course with an eye to the principles that underlie the specific laws, regulations and guidelines covered. Understanding these principles will help the student learn and apply the material in this course. This introductory section has already taken a stab at describing such principles by touching on the sources and motivations for the regulation of professional conduct.
Marriage and Family Therapists should include in their perspective on legal and ethical issues the fact that their profession focuses on social systems, particularly the family, often creating a different view of the “client” and the desired outcomes. As Maddock put it, “The willingness to bring social systems into the domain of mental health care has created added layers of legal and ethical complexity never envisioned by the original architects of the psychotherapeutic process…”5
What are Ethics in Psychotherapy Practice?
The American Heritage Dictionary defines ethics as, “The study of the general nature of morals and of the specific moral choices to be made by a person; moral philosophy.”6 It defines morality as, “The quality of being in accord with standards of right or good conduct.7
The California Association of Marriage and Family Therapists (CAMFT) points out in its Code of Ethical Standards for Marriage and Family Therapists, that “Ethical behavior, in a given situation, must satisfy not only the judgment of the individual marriage and family therapist, but also the judgment of his/her peers, based upon a set of recognized norms.”8 It suggests that ethical conduct can be challenging by saying, “The practice of marriage, and family therapy and psychotherapy is both an art and a science. It is varied and often complex in its approach, technique, modality and method of service delivery.”9 It also conveys that the therapist cannot blindly follow the codes or assume that he or she can use legalistic rationalization to justify an unethical behavior that is not specifically listed in the codes: “The absence of a specific prohibition against a particular kind of conduct does not mean that such conduct is either ethical or unethical. … the spirit and intent of the principles should always be taken into consideration”10
The CAMFT ethics code covers responsibility to patients, students, supervisees, colleagues, research participants, the profession and the legal system, as well as covering confidentiality, financial arrangements, and advertising. The codes essential intentions can be summarized with the following quotations from text that appears at the beginning of each section, stating that marriage and family therapists:11
advance the welfare of families and individuals, respect the rights of those persons seeking their assistance, and make reasonable efforts to ensure that their services are used appropriately:
respect the confidences of their patient(s)
maintain high standards of professional competence and integrity
do not exploit the trust and dependency of students and supervisees
treat colleagues with respect, courtesy, fairness, and good faith, and cooperate with colleagues in order to promote the welfare and best interests of the patient
respect the dignity and protect the welfare of participants in research
respect the rights and responsibilities of professional colleagues and participate in activities which advance the goals of the profession
recognize their role in the legal system and their duty to remain objective and truthful
make financial arrangements with patients and supervisees that are understandable, and conform to accepted professional practices and legal requirements
engage in appropriate informational activities (advertising -ed.), including those that enable lay persons to choose professional services on an informed basis
The CAMFT codes of ethics appear in appendices to this course.
Stress-Reducing Beliefs about Ethical Practice
The following guidelines are adapted from Pope and Vasquez’ textbook on ethics in psychotherapy.12
A Continuous, Active Process
Many factors can challenge and even interfere with ethical decision making. Laws and ethical codes cannot foresee every circumstance. Thus, a commitment to conscious analysis of ethical issues and gaining support for ethical conduct are essential.
Enlightened Use of Literature, Training and Research Data
Literature, training and research can result in conflicting and erroneous claims and ideas, or be misapplied through overgeneralization or misinterpretation. It is important to think critically and compare multiple sources and biases in developing and applying therapeutic procedures and ethical behavior.
Most Ethical Gaffes are a Matter of Fallibility, not Corruption
Most therapists are dedicated, caring individuals who are committed to competent, ethical practice. However, we can make mistakes or inadvertently succumb to pressures that result in breaches of ethics or effectiveness. By being open-minded about one’s own fallibility, and by thinking critically, the therapist is in a better position to prevent or recover from errors while minimizing harm. Continuous questioning as to better ways to perform or think critically is needed. Preoccupation with the faults of others is a red flag that we are distracted from our own faults. Even where large numbers of therapists have been highly confident, history has shown that we can be wrong.
Ethical Dilemmas do not Always Have Clear Answers
The therapist must accept that struggling with ethical dilemmas is an inevitable part of work as subtle and complex, and as fraught with societal and legal issues as psychotherapy (or any other healing art). This is another reason for continuing education in the issues, and for peer support in teasing out the answers. Where legal implications exist, consulting with the state board, agencies that are involved in the case, and an appropriate attorney are advisable to consider. Rather than being preoccupied with eliminating all risk of complaint or liability, the therapist should be actively involved in reducing risk in an ethical and lawful manner. Therapists who pursue perfect absence of risk tend to harm their performance through anxiety and perseveration. These are symptoms that deserve attention and help.
Concerns About Risk of Law Suits and Complaints
Therapists sometimes complain about situations in which there is no guarantee that a successful law suit can be prevented. Of course, an unsuccessful law suit is bad enough, because of the demands and stress placed upon the therapist being sued. The reason for legal ambiguity is that, as society changes, it takes time for laws and court cases to yield adequate direction. And even then, there may be conflicts between laws and between court judgments and laws. Further, technology has completely changed the face of confidentiality, leading to extensive federal law. Other societal changes include the changing perception of young people and sexual activity along with conflicts over issues of family planning, the roles of parents, and the boundaries of confidentiality.
Sometimes laws seem to go against common sense, or at least the instincts of therapists and the people they serve. When the basis of the law or judgment is traced back to its roots, it is usually possible to understand and comply with a clear conscience, but it is not always possible to convince an angry parent or spouse of its wisdom.
Nonetheless, therapists must determine where to draw the line between defensive practice; taking measures to prevent not only liability, but in its extreme form, the risk of even an unfounded complaint or law suit. In the medical field, this is known as defensive medicine. Given the ethical edict against engaging in practices solely for the benefit of the therapist, and given that defensive practice, carried too far, can deprive clients of adequate services, the therapist must ask whether a defensive strategy is an ethical one. In other words, the therapist must accept a certain level of risk along with the privilege of licensure in a healing profession. An example of an excessively risk-aversive approach would be refusing to work with children going through divorce simply because there is a higher likelihood of complaints or suits. Another is that of the psychiatrist who complacently prescribes medication to relatively easy cases, but will not accept cases that are complex, and neglects or actively alienates patients who become complex, simply because they are not as profitable. Refusing to accept cases that may be demanding is known as cherry picking.
The opposite syndrome to excessive risk aversion is that of too much abandon. Therapists who are overly driven by the need to play the hero may act with inadequate thought and research where there is a delicate ethical or legal issue. One therapist took his client’s problems so personally, that he would make bold moves without initially gaining adequate rapport. His narcissistic need to be a hero caused him to try to prove to a client engaging in self pity that people would be helpful, so he offered to loan her money to get out of a jam. The client was so confused, surprised and alienated that she left his care. This same therapist later ended up with two separate disciplinary actions by the board for other infractions, and earned the highest rate of complaints while serving the referrals of a managed care company.
Rather than being highly adverse to risk or demand, or being rash in their heroism, therapists should consciously determine where to ethically draw boundaries based on their own competencies and capacities, and with strategies that legitimately reduce risk of complaints and law suits. These strategies include the following:
Providing informed consent (as covered later in this course)
Setting expectations of clients at the beginning of treatment
Educating clients about what you can and cannot do, and about the legal and ethical requirements that are relevant to the situation at hand, and doing so in a preventative manner rather than reactively
Staying up-to-date with the changing legal landscape, and evolving ethical guidelines
Getting adequate support when an ethical or legal concern arises, through contact with experienced peers, the state board, one’s attorney, the attorney available through one’s professional organizational membership, educational materials available, the laws and guidelines themselves, and any other appropriate resources
Key Issues in Ethics
Personal Ethical Conflicts
Individual
Emotion, the drive to exceed one’s boundaries
Philosophy and Values in Ethics
Whether you know it or not, your actions are based upon a philosophy that embodies values to produce your ethics. These ethics have a profound effect on your work as a therapist. Your ethics have either a harmonious or stressful relationship with the more general ethical frameworks of the law and your profession. The American Heritage Dictionary defines philosophy as:
A study that attempts to discover the fundamental principles of the sciences, the arts, and the world that the sciences and arts deal with; the word philosophy is from the Greek for “love of wisdom.” Philosophy has many branches that explore principles of specific areas, such as knowledge (epistemology), reasoning (logic), being in general (metaphysics), beauty (aesthetics), and human conduct (ethics).
Different approaches to philosophy are also called philosophies. (See also epicureanism, existentialism, idealism, materialism, nihilism, pragmatism, stoicism, and utilitarianism.)13
Whatever answers one finds in philosophy, it is not a fixed base of knowledge or opinion. It is highly influenced by the biases of it’s culture, and it is ultimately personal. For example, the very influential philosopher, Schopenhauer was quite misogynistic and anti-Semitic, and felt that sex was disgusting.14 Philosophers and their philosophies need to be seen not only as being influential, but as having been profoundly influenced.
From the psychotherapist’s perspective, “philosophy is a set of generalizations and guidance regarding the identification and expression of human values…” Psychotherapy is “value laden” not value free.15
Everything you do can be seen as an expression of values. Consider the act of opening a can of tuna. You can view it in terms of contributing to your health and family, taking a political position on the hunting of dolphins, and the ecological aspects of waste management, depending upon what kind of tuna you purchased, who you gave the tuna to, and what you did with the can. Esthetics loom large in some schools of philosophy, and would be expressed in how you prepared the tuna.
Values are so deeply embedded in our culture from thousands or millions of years of patterned behavior, that identifying values can be like trying to get a fish to identify water. They are the fabric of our reality. Values can be seen in the highest aspirations and the most raw physiology, as in the drives that support procreation and survival. It is an essential responsibility of therapists to “unpack,” inspect, and refine their values in ways that are of practical value to their clients and to their own careers. A great additional benefit to this process is that it makes the therapist more effective at helping clients identify and act on their own highest and practical values.
One of the challenges to identifying values and adhering to functional values is that of rationalization. A therapist who states that he or she is having sex with a client because it is giving him or her a positive relational experience and practice at being uninhibited is actually performing a very commonplace mental trick. That of disguising physiologically primitive drives (the drives to procreate and to pursue pleasure, or hedonism) by unconsciously generating a higher-level value statement and adopting it as the surrogate reason for the behavior (that of creating therapeutic outcomes of value to the patient). This mental prestidigitation serves the parallel purposes of shielding the therapist’s awareness from information that would damage his or her self esteem while permitting the therapist to act on primitive impulses.
Mental tricks such as this have survival value. From the perspective of evolutionary psychology, the conscious mind and rational thought are of less value than procreation and survival. Rationality and ethical principles are younger and more delicate than our more primitive impulses. It’s no wonder that ethics in psychotherapy has such a checkered past, and poses great challenges to therapists and to the legal system.
Given that a substantial percentage of therapists who sexually transgress are repeat offenders who are difficult or impossible to rehabilitate, it is important to distinguish between therapists who need to refine their values and therapists who adhere to fundamental views of other people as objects whose needs exist only for the purpose of manipulating in a way that fulfills the therapist’s needs. This kind of narcissistic, antisocial character pathology is not a matter of limited insight, psychological defenses, and surrendering to impulses. It is not a matter of limited professional experience. It is a highly ingrained way of being and perceiving that is very difficult to treat, and generally leads the offender to evade treatment except in so far as it can be used to manipulate the system. This is a very good argument for taking assertive action that will create oversight and accountability when violations of ethics are discovered, particularly where personal boundaries are concerned.
Self Management
As much as our culture emphasizes the value of will power and conscious decision-making, the truth is that managing our impulses can be more like playing a piano while sailing a boat, than like driving a car; that is, more a matter of context, influence and cultivation, than direct control. However, for a therapist with antisocial personality disorder, it’s more like sailing a piano.
In thinking about self management where impulses may attempt to overwhelm ethics, the neuropsychological concept of kindling is of value. It means what it sounds like it means, that impulses, given enough promotion, become increasingly powerful. A common expression for this, where sexuality is concerned, is “playing with fire.” A strategy to avoid kindling where sexual attraction is concerned would be in refraining from sexual fantasies about clients. It is important to respect the power of our own physiology, and to manage it effectively.
Another approach is to self-monitor for signs of losing objectivity. Such signs include rationalization, changes in physiology such as heart rate, beginning to think of ways to cross boundaries, and finding oneself unconsciously crossing boundaries. Isolation is bad for ethics. It is very valuable to discuss ethical challenges with supervisors and mature, experienced peers.
Religious Belief
Religious beliefs and attitudes span the range from values that are aligned with patient welfare to values that are unhinged from client welfare. The disconnection from client welfare occurs when the intervention is based exclusively on principles that must be applied regardless of their final outcome. Fundamentalist religious positions result in this kind of disconnection when fulfilling the will of God as conceived by that religion as the highest law, and if the will of God in that religion is also antithetical to the patient’s welfare. The lowest likelihood of a complaint exists when fundamentalist counseling is carried out with persons of the same beliefs. This does not necessarily mean that the counseling or therapy will comply with the law or with professional codes of ethics, or even that the patient will benefit.
On the other hand, the therapist must have effective ways of responding to clients whose religious beliefs create special challenges for rapport-building and the pursuit of therapeutic outcomes. One example of means for diffusing value conflicts with fundamentalist patients is to describe oneself as a tool to be used in achieving certain outcomes, while the patient is told to consult with their trusted religious authorities to determine whether any advice would need to be modified in order to comply with the positions of those religious authorities. The patient can be told that if he needs a wrench, he does not ask what religion it is, but he would use the wrench in a manner compliant with his religion. This metaphor may not work with patients who hallucinate wrenches that can talk.
Blind Faith
Religiosity is an adjective that can refer to applying principles without regard to outcomes, or with blind faith that the outcomes will be good. Related words are zealotry, fanaticism, doctrine and dogma. Psychotherapy modalities can be applied with religiosity and produce disastrous results. Rigid adherence to prescribed techniques or acting on a theory independently of its outcome are two ways a doctrinaire approach to treatment can fail clients. Acting on a theory without regard to outcome occurs when the therapist is unable to trace the theory back to adequate evidence, or when the process of treatment is showing bad results.
An Example of Blind Faith in Rebirthing
The smothering of a young girl undergoing rebirthing therapy (a part of her attachment therapy) as a treatment for attachment disorder, as diagnosed by an unlicensed and unregistered Colorado therapist, resulted from applying the technique despite abundant evidence that it was harming the child.16 The therapist, her three assistants, and the adoptive mother had every intention of helping the girl, but her pleas for help and insistence that she was dying were misperceived through the therapeutic orientation or “filter” of the rebirthers. Among other evidence, a videotape of the session convinced jurors to convict the therapists in the child’s death.17 Two of the therapists were sentenced to sixteen years in prison for reckless child abuse resulting in death. They received the minimum punishment because the judge believed that they did not intend to harm the victim.18 The deaths of several other children have been linked to rebirthing, also known as holding therapy.19
This case had additional elements of zealotry, in that promotional materials and statements about rebirthing stated that it was the only therapy that was evidence based, when there was no research supporting it, and in that the primary therapist indicated in her materials that she was a licensed clinical social worker, which was false. The strength of the rebirthers’ beliefs eclipsed fundamental principles of clinical thought and ethics, despite the fact that the primary therapist was a nurse. Additionally, they were using somatic interventions in the sense that there was physical restraint, application of physical pressure, and deprivation of oxygen. When using methods that can have a direct physiological impact (or an acute or dramatic psychological impact, for that matter) it is especially important to become well-informed about any potential risks and any advisable safety measures, if the methods are appropriate to use in the first place.
The Example of Recovered Memory
The recovery of repressed memories of child abuse was popularized in the early 1980’s. A wave of prosecutions and law suits against alleged perpetrators followed. At the same time, many children provided accounts of current or recent abuse as well. In the 1990’s a wave of malpractice claims against therapists and organizations accused of eliciting false memories followed. The recovered memories were often elicited through methods such as hypnosis and manipulative interrogation techniques directed at children. The incidents were often unsupportable by evidence or even extremely improbable.
The debate over recovered memories has often occurred as a polarity between whether or not abuse occurs or whether or not a person is a true feminist. Many feel that this period constituted a modern witch hunt. In Manhattan Beach, California, as the McMartin Preschool case was unfolding, many cars had bumper stickers saying, “We Believe the Children.”
A sober discussion of the issue centers around science and the establishment of facts. Despite the emotion and smear campaigns directed at people who questioned the recovered memory movement, guidelines for interviewing children and for conducting assessment of symptoms that may occur as the result of a history of child abuse have been established. There is a great deal of research that has helped clarify the nature of memory, therapy, and testimony relevant to this issue.20
Successful cases against therapists using inappropriate means of producing memories of childhood abuse have resulted in large penalties.21
The wave of repressed memory and questionable abuse cases peaked in the mid 1990’s, and have greatly diminished as a result of research and increased sophistication in the courts, social services, the public, and psychotherapy.
Competence to Practice and Self Monitoring
“The ability of a therapist to help a patient is strongly influenced by the nature of that therapist’s psychological functioning.”22
Integrity of the Therapist’s Personal Boundaries
For this section, the word integrity is not used in a moralistic sense, but in a structural sense. Intactness of the therapist’s ego boundaries will vary with stress on the therapist. Depending on the therapist’s existing vulnerabilities, which will in some cases include a mental disorder, stressors such as illness, relationship problems, lack of sexual satisfaction, loss of self esteem, legal problems, loss, and trauma may result in an increase in impulsiveness or neediness on the part of the therapist that may intrude upon the therapeutic relationship.
The therapist’s self assessment, preparedness for such eventualities, and external support from family, friends, peers, supervision, and psychotherapy are all factors that may help to prevent a bad outcome and even improve the quality of good therapy.23
The following subsections provide examples of opportunities for therapists to improve their self-knowledge, as well as their assessment of clients and supervisees, coworkers and employees.
Cognitive Profile of the Therapist
Cognitive strengths and vulnerabilities have implications for ethics. If the therapist has significant cognitive difficulties, he or she may have trouble with a large caseload, case management, or case conceptualization and treatment planning. Problems such as attention deficit disorder may leave treatment planning intact, but interfere with managing details when case management demands exceed a certain threshold. Therapists must know their cognitive abilities to avoid taking on responsibilities outside their scope of competence. This may require outside assistance, because persons with some neurological problems may experience what is known as a positive illusory bias, in which they overestimate their abilities.
Personality Style of the Therapist
The therapist’s personal reaction (countertransference) to patients can significantly alter the course of treatment for better or worse. One area where this issue has received attention is in regards to treatment of individuals with personality disorders. For example, therapists have been shown to be more likely to have negative reactions to patients with cluster A and B personality disorders. This tended to be associated with high drop out rates, and affected patients’ feelings about therapy.24
Much research has highlighted the importance of the therapist-patient relationship in therapy as a positive correlate to good therapeutic outcomes. The therapist’s capacity to maintain a connection with the patient that is not contaminated by the therapist’s issues is widely believed to be an important part of that correlation. Therapists with more effective parenting have been shown to use less interpretation and elicit less maladaptive defensiveness in patients.25
Therapists can inspect their strengths, weakness and training needs by their reaction to and success with people who have symptoms of personality disorders, or at least who have difficult personalities. The same can be said for their reaction to highly victimized people, and highly assertive people.
Impulse Control and the Therapist
Therapists with impulse control difficulties may have a history of “blurting” that is, saying something that is not altogether socially acceptable (or of therapeutic value) before they think about the consequences, or they may experience little concern for the consequences. There may be a history of poorly thought out efforts to be the hero or to react to perceived slights. These incidents may be more likely when there is a sense of heightened emotion or urgency, or when there is more sensory stimulation or recent blows to the ego.
Therapists with this kind of history must work conscientiously with supervision to develop accommodative measures and stress reduction or self-soothing methods.
Evidence-Based Practice
Clinicians are facing increasing challenges to justify their approaches in terms of evidence such as outcome studies and other research published in peer-reviewed journals. The prosecution for the case of Candace Newmaker, the girl who died in rebirthing therapy, repeatedly returned to this issue in cross examination the therapists. However, there are significant challenges in fulfilling this aspiration. There can be difficulty, “converting clinical guidelines into active performance measures,” or in, “integration of findings into daily operations.”26 Research may appear to have implications for therapy in real-life situations that are misleading. Research studies may not be as relevant to practice conditions as they appear. Therapists in research studies may not actually carry out therapy with as much fidelity to the prescribed method as is believed, because they may put patients’ needs ahead of the research objectives, or because the patient cohort is not as homogenous as intended.
Often, there is not enough consistent data available to form a secure evidence-based opinion, despite the existence of practice guidelines and texts that synthesize what information is available. Therapists often use methods that are not yet well-researched, but that they have faith in because of an abundance of clinical experience. In this circumstance, avoiding blind faith by staying outcome-focused and carefully assessing risks and one’s own scope of practice and competence are essential.
Staying up-to-date is the first priority in evidence-based practice. However, it is important to understand the limitations of research such as biases. This topic is covered in research courses. Much medical research has been called into question because of the influence of “big pharma” (the pharmaceutical industry) on research and its publication. This has included the suppression of negative information about medications.
Informed Consent
At the outset of therapy, clinicians provide their clients with verbal and written information, much of which is legally required. Some information is not legally required to be offered, but affords some legal protection to the therapist. Other information provided is helpful in setting client expectations in order to improve client understanding and adherence to terms and conditions of the services provided by the therapist. HIPAA and state regulations require therapists to provide specific information in the service of informed consent at the outset of treatment.
Informed consent refers to a patient having adequate information to make a decision regarding medical care. This prevents a medical procedure from being considered battery.27 Information that assists the client in understanding the risks and rewards of their mental health services affords the client the ability to give “informed consent.”
Confidentiality
Confidentiality is generally considered to be a cornerstone of the doctor-patient relationship.28 Many psychotherapists assume that mental health treatment is most likely to be successful when the client has a trusting relationship with the clinician.29 People tend to reveal much of their private selves in the course of receiving psychotherapy. Trust that clinicians and institutions will preserve client privacy is necessary to maintain the value of mental health services. Laws that protect confidentiality attempt to preserve this trust, so that people will be more likely to benefit from mental health services such as psychotherapy. With trust in confidentiality, people are more likely to pursue psychotherapy, are more likely to afford the level of care that they need by utilizing their insurance and other benefits, and are more likely to divulge information that is needed to ensure effective treatment. In addition to the needs of individuals, confidentiality laws serve the interests of family members, employers and society in general, by helping to reduce the impact of mental and emotional disorders and personal problems.
These laws protect as private information both the fact that an individual has sought mental health treatment, and the disclosures that are made during treatment.30 Confidentiality laws can also serve to protect the client or other family members and even the therapist from the danger that may result when a violent individual learns that someone they have intimidated is seeking support, or when that individual learns of the identity of the therapist. These laws help to protect individuals from problems such as social stigma, and workplace and housing discrimination.
Legislatures and the justice system have given considerable attention to issues concerning the role of privacy in health care over the last three decades. While the legal right to privacy has been at issue most frequently in procreation and end of life decisions, it is well established as being of great importance in mental health services.31
The right to privacy itself, in its most abstract form, has its genesis in the fourth amendment of the Constitution.32
Confidentiality and required reporting guidelines pertaining to California Marriage and Family Therapists are set forth in Article 2, Section 4982, of the California Board of Behavioral Science (BBS) Statutes And Regulations booklet. Section 4982 states: The board may refuse to issue any registration or license, or may suspend or revoke the license or registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct.
Subsection (m) documents unprofessional conduct to include the following: Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.
Specific statutes and regulations that address confidentiality are codified in the California Evidence Code, Civil Code, Business and Professions Code, Pen. Code, and Welfare and Institutions Code. An overview of these rules and related practical information follows. Sometimes federal law may be stricter than state law, or apply because of the program that the therapist serves. These laws include HIPAA and Code of Federal Regulations (CFR) 42.
What is to be Confidential
The confidentiality of psychotherapy clients includes the question of whether they are participating in mental health services. Psychotherapists must refrain from confirming or denying that any individual is or has been a client, so long as there is no legal exception to confidentiality.33 All details of the verbal and written communications in the course of psychotherapy, assessment, testing, reporting and other communications are also protected as private information.34
The Place of Confidentiality in the Therapeutic Relationship
As Ethical Standards
The CAMFT code establishes as an “overriding principle” of its confidentiality section, “…that marriage and family therapists respect the confidences of their patient(s).”35 CAMFT takes the position that a marriage and family therapist can consider a grouping of two or more people to be a patient, stating that these therapists, “have unique confidentiality responsibilities because the ‘patient’ in a therapeutic relationship may be more than one person.”36 AAMFT has a similar provision in its code. Nonetheless, both stress the importance of the confidentiality of the clients as individuals. They also provide for cooperating with legal requirements for breaching confidentiality, and for providing informed consent, that is, orienting clients to the nature of confidentiality and the ways it may be breached. Neither code goes into nuances such as withholding information authorized for release because its release would not be in the best interest of the client, or what measures to take regarding continuity of care when a member of a couple shares a secret with the therapist that he or she does not want the therapist to tell the other member of the couple.The CAMFT code regarding confidentiality is not highly detailed, but covers the most critical topics of confidentiality.
2.1 Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.
2.2 When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.
2.3 Marriage and family therapists are aware of the possible adverse effects of technological changes with respect to the dissemination of patient information, and take reasonable care when disclosing such information. Marriage and family therapists are also aware of the limitations regarding confidential transmission by Internet or electronic media and take extra care when transmitting or receiving such information via these mediums.
2.4 Marriage and family therapists store, transfer, transmit, and/or dispose of patient records in ways that protect confidentiality.
2.5 Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of patients is maintained by their employees, supervisees, assistants and volunteers.
2.6 Marriage and family therapists use clinical materials in teaching, writing, and public presentations only if a written authorization has been previously obtained in accordance with 2.1 d, or when appropriate steps have been taken to protect patient identity.
2.7 Marriage and family therapists, when working with a group, explain to the group the importance of maintaining confidentiality, and are encouraged to obtain agreement from group participants to respect the confidentiality of other members of the group.* ibid.
The AAMFT Code of Ethics is slightly more detailed, but very similar to that of CAMFT.
2.1 Marriage and family therapists disclose to clients and other interested parties, as early as feasible in their professional contacts, the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures.
2.2 Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.
2.3 Marriage and family therapists use client and/or clinical materials in teaching, writing, consulting, research, and public presentations only if a written waiver has been obtained in accordance with Subprinciple 2.2, or when appropriate steps have been taken to protect client identity and confidentiality.
2.4 Marriage and family therapists store, safeguard, and dispose of client records in ways that maintain confidentiality and in accord with applicable laws and professional standards.
2.5 Subsequent to the therapist moving from the area, closing the practice, or upon the death of the therapist, a marriage and family therapist arranges for the storage, transfer, or disposal of client records in ways that maintain confidentiality and safeguard the welfare of clients.
2.6 Marriage and family therapists, when consulting with colleagues or referral sources, do not share confidential information that could reasonably lead to the identification of a client, research participant, supervisee, or other person with whom they have a confidential relationship unless they have obtained the prior written consent of the client, research participant, supervisee, or other person with whom they have a confidential relationship. Information may be shared only to the extent necessary to achieve the purposes of the consultation.37
As an Aspect of Informed Consent
Clinicians routinely provide information regarding confidentiality as an aspect of informed consent. The issues of confidentiality equate to risks and rewards that the client should knowingly choose when entering therapy. There are risks that confidentiality may be breached due to legal responsibilities placed upon the therapist, or breached illegally through an error or an intentional act. Legal and procedural measures to preserve confidentiality afford protection, but not certainty.
CAMFT and AAMFT codes of ethics, as well as the Health Information Privacy and Accountability Act (HIPAA), call for providing informed consent.
As Privilege
Privilege: Not Exactly Confidentiality
Confidentiality of medical information is a right that citizens hold. This right imposes upon therapists a duty to preserve the privacy of their clients. When another duty competes with the therapist’s duty to preserve client privacy, the therapist must assert that one duty is a more important obligation than the other.
For example, if an attorney subpoenas a clinical record, the therapist usually must assert that his or her duty to preserve client privacy is more important than the duty to provide the court with confidential client information. This is the assertion of privilege, that is, asserting that one duty has a privilege over another. By asserting privilege, the therapist is fulfilling the responsibility of “holding” the clients right to privacy.
Records
Clinical records fall under the laws that regulate medical records.
Patient Access to Records
Patients own their health care information without owning the physical files themselves. Patients have the right to review or get copies of their files.9
Patients may even append records that they feel are inaccurate or incomplete.38
A therapist may limit a patient’s access to his or her files if the therapist believes that seeing the file would put the patient at a “…substantial risk of significant adverse or detrimental consequences…”39 Instead, the therapist may prepare a summary of the record for the patient.40
There are many details regarding what must be in a record summary, time frames for compliance with records requests, and charging for preparation of records and summaries. These details are in the laws referenced here, and in the course on confidentiality provided by this vendor.
Maintaining Records
California law and the ethics of both CAMFT and the AAMFT require that records be maintained for a reasonable period of time.
The legislature’s intent is that, “…all medical information transmitted during the delivery of health care via telemedicine…become part of the patient's medical record maintained by the licensed health care provider.”41
The physical and electronic security of records is an aspect of their maintenance. The laws regarding records require that they be maintained with adequate security. The laws include references to electronic records and their security needs. 42 The tremendous capacity for storage and dissemination of personal information has created entirely new responsibilities for record maintenance and security. Breaches involving thousands of records have occurred as a result of theft and negligence affecting several government agencies and private businesses. This is among the factors that led to the Health Information Protection and Accountability Act (HIPAA).
Unprofessional Conduct and Penalties
Violations of standards pertaining to confidentiality are subject to the legal consequences for unprofessional conduct.
HIPAA
The Health Information Portability and Accountability Act (HIPAA) is the first federal privacy standards act intended to protect patient’s medical records and other health information in the possession of health care providers, including health plans. Congress enacted HIPAA, also known as the Kennedy-Kassebaum Act, in 1996. Developed by the Department of Health and Human Services (HHS), it took effect in 2003. Also known as the Privacy Rule, HIPAA provides patients with access to their medical records and gives them more control over their personal health information. The Act is intended to establish a nation-wide floor of privacy protections, meaning that states may maintain or establish more stringent laws without being invalidated by HIPAA.43 HIPAA also protects employees who change jobs and protects the rights of people with health insurance. It includes significant privacy, confidentiality, reporting and compliance requirements.44
HIPAA is also intended to make health insurance coverage more available. It does this through means such as improving the transmission of electronic records and providing improved privacy of health and medical information.
HIPPA rules apply to therapists who transmit records electronically in carrying out financial transactions or administrative activity such as claims submission. This includes Internet or email transmission, and the use of electronic media such as CD's. Faxing and electronic data storage are not included.45 The individuals and organizations to which HIPPA applies are referred to as “covered entities.” HHS provides a great deal of information, including answers to common questions at www.HHS.gov/ocr/hipaa.46 It is better known as a means of regulating corporations such as health plans, hospitals and pharmacies that previously were not as accountable for protecting patient confidentiality. However, therapists in solo private practice stand to benefit by adopting HIPAA compliance, particularly regarding informed consent and maintaining separate psychotherapy notes.
Guidelines for Psychotherapists
Basics
HIPAA is respectful of state law when it comes to confidentiality and disclosure of health information, referred to in the law as private health information (PHI). As you would expect, it requires written authorization for all disclosures of PHI, but it exempts "treatment, payment or operations" (TPO), such as billing and training.
The law distinguishes between "use" and "disclosure" of PHI. Use refers to transfer of information within an organization that is a covered entity. Disclosure refers to release of information outside of the organization or the therapist's practice.
TPO Uses of PHI
Therapists do not need a separate authorization for "uses" of PHI (as you’ll recall, that is personal health information) as mentioned above. HIPAA lists the following as TPO (again, that is treatment, payment and operations) "uses".
Use by the originator of the psychotherapy notes for treatment
Use or disclosure by therapists for their own training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling
Use or disclosure by therapists to defend themselves in legal actions or other proceedings brought by their patients.47
Privacy Notice
Therapists are to provide their patients with a notice that describes the therapist's privacy practices by the first appointment. The therapist must make a good faith effort to get written acknowledgement from clients indicating that they have received this notice, and the notice must be posted in the therapist's office.
Release of Information Form
For specific authorizations to release information, that is, releases that are not covered by the initial TPO uses release, the client must sign a release form. HIPAA has specific criteria for such a form.
Psychotherapy Notes
One of the protections for the mental health information of clients afforded by HIPAA lies in HIPAA’s designation and use of psychotherapy notes. HIPAA protects psychotherapy notes from the blanket release that allows medical information to be used for administrative purposes. It requires that the notes be protected from view by anyone other than the therapist and anyone to whom the records are specifically authorized for release. Its protections for psychotherapy notes include the provision that they be separate from the patient’s main record. This helps ensure, for example, that the psychotherapy notes will not be accessed by a clerk out of curiosity.48 49
HIPPA defines psychotherapy notes, and specifies what must be placed in the main record and never put in the psychotherapy notes. It also requires that the notes be maintained separately from the main record.50 The definition of psychotherapy notes as pertaining to the “contents of conversation” is a very limited definition because it is part of a design to both maintain a viable primary record, as well as prevent or limit distribution of the most private information.
Disclosing Confidential Information
Authorized Release of Information
The client may consent to a release of confidential information for many reasons, the chief of these being the provision of information to another care provider, such as a psychiatrist or new psychotherapist. Other reasons include providing information that verifies compliance with the requirements of an outside entity such as the client’s probation officer or employer.
Under HIPAA, an organization that provides clinical services may allow staff access to client information in order to maintain records, supervise clinicians, do case management and other tasks. Similarly, an individual therapist may reveal information to a person or organization that provides administrative services such as billing. In all cases, the information must be limited to what is necessary to provide the service. The people who have access to that information must treat it as confidential medical information.
The therapist must consider the welfare of the client, even when the client has authorized or demanded a disclosure. If the therapist is convinced that the disclosure is not in the best interest of the client, then the therapist may need to refuse to cooperate with the disclosure and attempt to dissuade the client from making such a disclosure. Consider the example of a client who thinks that providing information to a physically abusive spouse will help the spouse develop more empathy. In such a case, the therapist would have to consider whether the disclosure might actually worsen the danger.
Insurers
Insurance companies, including managed care companies, have the responsibility to protect privacy. This includes having systems and policies in place to accomplish such protection. Clients are not always aware of what information will be sent to insurers, particularly where managed care policies include reviewing clinical information in order to determine whether to authorize additional treatment or a change in level of care. Informed consent dictates that therapists provide enough information about their relationship with the insurer that the client can be make informed choices regarding their confidentiality.
For example, a client may not want certain diagnoses to become preexisting conditions affecting their insurability after a change in employment (and insurance policies) that could take place in the future. In some cases, clients may prefer to pay privately or limit the focus of therapy based on this information. In any case, the therapist should attempt to limit the information provided to only that which is necessary to conduct business with the insurance company, and only in so far as the release of information authorized by the client permits.51
Compulsory Mental Health Treatment
Additional confidentiality issues arise when there is compulsory mental health treatment. This occurs when people are compelled by organizations such as courts or employers to seek mental health assessment and treatment for various reasons. A court may compel an individual who has been convicted for driving under the influence of alcohol or drugs to undergo a substance abuse and mental health assessment. The court may require a period of time during which the client must provide urine screens in order to test for evidence of current substance abuse. A person failing to comply with the court orders can suffer legal consequences that may include imprisonment.
Private entities such as employers may compel people as well. For example, many employers have policies that allow them to suspend the disciplinary process. This can prevent the employee from being fired so long as the employee cooperates with a mandatory referral process. This process can include a referral to the company employee assistance program (EAP), and can require compliance with the recommendations of that program. Ultimately, the employee must improve his or her functioning within a period of time that does not constitute a hardship for the employer.52
The therapist must deal with contractual obligations with the organization as well as abide by the ethics and laws of confidentiality pertaining to the patient. Generally, in a compulsory referral, the patient will release the therapist to provide certain limited communications with the referring organization. Usually, the patient can terminate that release at any time. This normally means that the referring organization will consider the patient to be “out of compliance” with the mandatory referral, and impose whatever disciplinary process is slated to occur in the absence of such compliance.
Therapists can learn more about compulsory referrals through the confidentiality course, or by gaining EAP (employee assistance professional) certification.
The Subpoena
The therapist must respond to a subpoena, because subpoenas have the force of law. Attorneys are officers of the court, and require information to fulfil their duty in cases. Subpoenas are generally issued during the discovery phase in preparing for trial. Attorneys generally cast a wide net in seeking information; not knowing in advance what information will be of use.53
There are several ways for the therapist to uphold his or her responsibility to protect client privacy. It is very important to plan the response to a subpoena with the help of an attorney, because there are too many legal variables. You may need to attempt to have the subpoena quashed (usually on a technical ground), modified, or even attempt to negotiate with the party issuing the subpoena.54
Other Requests for Information or Confidentiality
Therapists may experience requests for information about clients or people believed to be a client from outside individuals or organizations. These may include family members, attorneys, journalists, law enforcement officers, neighbors or other parties.
A straightforward way for the therapist to assert privilege is to state, “I can neither confirm nor deny that the individual is a client, and I cannot divulge confidential information regarding anyone who is a client.”
This statement is true even if there is public knowledge or the person or organization knows of the treatment. It is true even though the client is speaking publicly about the treatment. It is even true when there is an exception to confidentiality, such as child abuse, because exceptions to confidentiality only allow the information to go to specified people or agencies under specific circumstances.
An individual who contacts the therapist about someone he or she believes to be a client may request that the conversation with you be kept from the client. The therapist cannot make such a commitment because it may not be in the best interest of the client.
Unsolicited Information about the Client
An individual may contact the therapist with information about the client. The therapist may consider it in the best interests of the client to accept the information, but should contact the client promptly to disclose that this activity has taken place.
Exceptions to Confidentiality
Legal Limits
Confidentiality has its limits, and California law spells out several exceptions to client confidentiality. They are threat of harm to self or others, certain lawsuits, a court order, detention of a mentally disordered person for evaluation, and reasonable suspicion of abuse of a minor or dependent adult.
Threat of Harm to Self or Others
There are various ways a person can become a threat of harm to self or others. Risk of suicide and planning to physically harm someone are examples. The therapist must respond appropriately to these risks, and the level of risk is a factor in choosing a response. When the threat of suicide or violent behavior is significant, client should be hospitalized for stabilization and further evaluation, and the therapist should provide to the hospital all information necessary for this. The therapist should encourage the client to participate in hospitalization voluntarily, as a therapist would for any change of treatment or level of care. The therapist should explain the nature of the process, the rights of the client, the ways the therapist will support the process, and the client’s ability to stay with the current therapist upon returning to the community. This may help elicit cooperation from the client.
Involuntary Commitment
When the client is uncooperative, the therapist must notify the police to initiate evaluation by the resource designated by the county for this purpose. This can result in temporary hospitalization for further evaluation on the basis that the patient is gravely disabled. These clients may be hospitalized involuntarily (held) for seventy-two hours (or longer in some cases) for assessment under Welfare and Institutions Code 5150.
In order for the hold to take place, the designated professionals must make the determination that the individual is gravely disabled. Although the therapist, the neighbors, or the person’s family may feel that he or she is gravely disabled, the professionals making the determination may not agree that a hold can be done according to the specific requirements of the law. In that case, the individual is released unless he or she is willing to receive residential assessment and treatment services voluntarily. Even then, there may not be funding for that individual to receive the services if the person’s symptoms do not rise to a fundable level, or the person cannot afford to pay privately.
The telephone call should be made immediately, and if the client has left or broken contact, the therapist should provide the last known and most likely locations of the client. If the status of the client is uncertain and the therapist cannot reach the client, the therapist can ask that the police perform a “welfare check” by going to the client’s home to determine if additional action is necessary. This can be upsetting to a client, but it is better than allowing risk of harm to persist.
When the client is in a residential setting such as a hospital, it is important that the therapist encourage the providers there to get a release of information allowing them to communicate with the therapist. This way, the therapist may participate in the return of the client to the community and support the treatment plan that is established prior to release.
Additional information on this subject is contained in the relevant law, and in the course on confidentiality.
Criminal Activity
Criminal activity does not, in itself, pose a mandated reporting condition. The value of psychotherapy to society would be substantially impaired if therapists were required to report all criminal activity, because this would pose a major barrier to seeking treatment for many people. The therapist must consider the elements already discussed, such as Tarasoff conditions (threat of harm to an identified person) and the definition of abuse.
Lawsuits
A lawsuit may result in a subpoena for client information. A subpoena is not a court order, and the therapist is obligated to preserve client confidentiality unless there is an exception or an appropriate and authorized release of information. The therapist can respond to such a subpoena by stating that he or she can neither confirm nor deny that any given individual is a client, and cannot release information from a client record without consent or a court order.
Court Ordered Disclosures
When ordered by the court to disclose information about a client who will not authorize the release, the therapist is not obligated to refuse to cooperate with the court.55 Therapists are not expected to endure penalties for contempt of court, and it is to be presumed that the court has determined that the needs of society in such a case outweigh the values of confidentiality to the client and to society that are described in the introduction to this material.
2.2 Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law.
Reasonable Suspicion of Abuse or Neglect
Psychotherapists are among the entities that are legally “mandated reporters” of suspected or alleged abuse or neglect of children, elders or dependent adults.56 Children are defined as persons under the age of eighteen.57 Elders are defined as persons 65 years or older.58 Dependent adults are defined as persons between the ages of 18 and 64 whose physical or mental limitations restrict their ability to care for themselves, specifically:
"Dependent adult" means any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (b) "Dependent adult" includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.59
Reporting
The mandated reporter does not have to produce conclusive proof of abuse or neglect; rather, he or she must report “reasonable suspicion” of abuse when functioning within his or her professional capacity. The report must immediately be made to the police or to the Department of Social Services. It must also be provided in writing within thirty-six hours for children, or within two working days for adults.60 The written report can sent by mail, fax, or electronic transmission. Agency workers can help determine if a report is actually required.
The Welfare and Institutions Code only mandates that therapists disclose information with they encounter it in the course of professional activity, and only when there is present danger. The therapist may determine that there is present danger, even though a client disclosed abuse from the past.61 For example, if an adult client reports sexual abuse by an individual who is currently in a household with children, the children may be at risk for abuse. A supervisor or other staff person may not interfere with a mandated reporter’s attempts to report.
If more than one mandated reporter becomes aware of the suspected or alleged abuse, only one of them needs to make the report. However, if the designated reporter fails to make the report, another of the parties must make the report within the specified time frames. Since the first report needs to be made right away, the therapist cannot allow for any delay.
CANRA
Much of the law pertaining to abuse and neglect of children is known as The California Child Abuse and Neglect Reporting Act (CANRA) and is comprised of Penal Code sections 11164-11174.4.62
Definitions: Welfare and Institutions Code
The California Welfare and Institutions Code lists the types of abuse that are to be reported:
In respect to minors, a psychotherapist is mandated to report non-accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (as in a young child witnessing domestic violence); neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age).63
The code also addresses abuse of dependent adults and elders:
“In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; neglect; and isolation.”64
Bear in mind that many of these terms are defined in the Penal Code sections referred to in this training.
Emotional Abuse
The therapist is not required to report emotional abuse, but the law protects the clinician from liability if he or she reports it.65 Emotional abuse is a sufficiently gray area, that it is left to the clinical judgement of the therapist as to whether it is reportable. It may appear confusing that, despite the optional nature of emotional abuse reporting, the law requires that the therapist report “unjustifiable mental suffering.” This language helps to draw a line between a judgment call about the words a parent uses and a circumstance that clearly should not be tolerated, such as “a young child witnessing domestic violence.”
The law states that certain evidence can give weight to, or at least help direct, concerns about emotional abuse by pointing out what constitutes evidence of such abuse, stating that, “Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9.”66
Sex with Former Therapist
If a therapist learns of sex between an adult client and a former therapist, the therapist is not permitted to report this. It is protected, private information. However, the therapist is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient.67
Special Issues
Collecting Fees or being Sued
If the therapist finds it necessary to sue a client in order to collect fees, the therapist is allowed to disclose the information necessary to conduct the suit.68 This information typically includes dates and charges for sessions and the fact that the services rendered were psychotherapy or other mental health services. The therapist would not disclose any diagnostic or other clinical information.
The therapist is cautioned that financial issues between therapist and client greatly increase the odds of a complaint to the board, or of a law suit.69
If a patient sues a therapist regarding treatment, the therapist is allowed to use clinical records as evidence in self-defense.70
Setting Fees
The subject of fees can become confusing, as historical opinions, ethical concerns, legal issues, and market forces may all weigh on the therapist’s mind. From a business point of view, it could be said that most therapists charge what the market will bear.
Therapists may be tempted to alter their rates based on the ability to pay. It is important to ensure that any such policy is sustainable or modified as needed, and accompanied by a realistic image to potential patients about the nature of the therapist’s practice by, for example, not implying that the practice is a social program when it is not.
In order to avoid accusations of insurance fraud, and in order to be in compliance with insurance contracts, it is important not to raise your fee whenever the payer is an insurance company. The therapist is advised, when adjusting fees, to adjust down from a standard fee, not up.71
The overhead of verifying patient income claims is unlikely to be appropriate for a private practice, though it is a policy for some social agencies that offer sliding scales.
Contacting Clients via Mail, Phone, Email, and Other Methods
Care must be taken to protect client confidentiality from potential breaches that may occur when using voicemail and other methods to contact the client. It is wise to review with a new client what methods of contacting the client are safe and acceptable. For example, a client who fears domestic violence would not want the therapist’s phone number to show on caller ID at home.
Therapists attach boilerplate text to email and faxes that warn an unintended recipient to ignore the message.
Couples, Families, and Groups
With couples, families and groups, the therapist has more than one client at a time, and some therapists think of the collective as their client. For example, the welfare of the family as a whole is elevated to the status of the welfare of the client. In any case, the therapist holds privilege for each individual. At times, this responsibility can require judgement on the part of the therapist when there is conflict between the desires and rights of the individuals involved. It is important to discuss confidentiality issues at the outset of treatment.
Couples
The therapist must preserve the confidentiality of both members of a couple. This can be difficult at times. When starting treatment with a couple, it is wise to broach the subject of secrets and gain agreement on a means of handling this issue.73 Generally, the couple should agree that the therapist will not be expected to hold secrets.74
However, since each individual has the right to privacy, there are cases in which a member of a couple may disclose information to the therapist that that client is unwilling to reveal to the other member of the couple. If the information would have an impact on the other member of the couple and is inappropriate to conceal, the therapist can no longer work with the clients as a couple.75 Typical secrets include infidelity or the client not wanting the partner to know that he or she has disclosed abuse on the part of the partner. Such disclosures can take place during a telephone call or an individual session.
When this occurs, the therapist typically notifies the partner who did not confide that therapy must be transferred to another provider. The therapist may continue to work with the partner who confided the secret, or may refer both partners to another provider.
Any client can terminate any agreement to release information at any time, and can do so verbally or in writing. This is true even if the release of information does not exist as a signed document, and even if the couple agreed on how information would be shared. The therapist immediately must begin complying with the new directive to protect confidentiality.76
If the therapist wishes to refer a partner to another therapist, but the partner is unstable; the therapist must consider the safety of the client in determining whether or how to proceed with a transfer of care. Legal advice should be sought when there is any uncertainty.
The circumstance may arise in which it is necessary to release information about one member of the couple where the other member will not or has not authorized release of information. In this case, information must exclude the identity and implications regarding the identity of the partner, unless there is an exception to the partner’s confidentiality as might occur in a case of child abuse.77
However, if a member of the couple requests possession of a copy of the record, this is another matter. The therapist would only release this when both members authorize the release75, and then only when both members can tolerate reading its contents, as with record releases to individual clients. It would not be realistic to expect a therapist to take the time or to succeed at redacting enough information to preserve the confidentiality of one member of a couple, where the record is of couples therapy.78
When initiating therapy, it may help to prevent misunderstandings by introducing the couple to the idea that the couple is the client, in the sense that the couple is primarily working with the therapist on their relationship. 79
Families
Most of the relevant confidentiality issues pertaining to families are discussed in the sections on minors, couples, and groups.
When a family member poses a risk to other family members, the therapist must disclose to the authorities the make up of the family. This is necessary in order for the authorities to assess risk to the family members and to intervene as safely as possible.80 For example, an abusive sibling may pose a risk to several siblings, even if only one is known to have been abused.
Groups
Members of therapy groups do not have the statutory obligation to preserve confidentiality that therapists do. However, the members should be expected to preserve this confidentiality, and this is to be stressed to group members from the beginning.81 This has the clinical value of promoting disclosure within the group, and this value can be explained to the group members.
Group members should also understand the limits of confidentiality, and the additional risk that a member could disclose their personal information. Although this may affect the participation of some group members, it is a matter of informed consent that the members understand the risks and benefits of group therapy, including those related to confidentiality.
Minors
There are many aspects to the issues of confidentiality and consent to treatment when children receive mental health care, and the legal issues are not always clear-cut. Minors have a great deal of protection for privacy, as discussed below. At the same time, the law requires therapists to involve parents in minors mental health care, so long as it is appropriate.82
The therapist must exercise clinical judgment in weighing the obligation to involve the family against issues of privacy.83 Generally, clinical judgment and the law are not at odds regarding the confidentiality of minors’ medical records.
There is additional information on handling confidentiality with minors in the relevant law, and in the course on confidentiality. 84 85
Privilege and Common Practices
In many treatment situations, the therapist gets parental permission to release information for clinically sound purposes. When the child is being seen individually, the therapist should discuss the nature and limits of confidentiality with the child and parents. Generally, the child will have a good deal of privacy, but the therapist will disclose to the parents the child’s overall progress in therapy and specific concerns about his or her welfare, such as dangerous contacts, sex, and drugs.
The therapist can gain authorization to treat a child from just one of the parents in an intact marriage if the parent indicates that they agree about the child receiving therapy.
Certain legal issues and controversies can pose risks and be difficult to judge. These have to do with custody, disagreements between parents, disagreements between parent and child, and danger to the child’s welfare caused by parental involvement. It is especially where there is acrimony that the therapist must beware, so that he or she and the child are not used as weapons by a bitter parent. Even seasoned therapists should get legal counsel if there is any uncertainty or controversy regarding confidentiality, custody, or the child’s legal ability to give consent to treatment.
Withdrawal of Consent by the Minor
The law states that therapists may not share records regarding mental health care of a minor with the minor’s parents or legal guardians without the minor’s consent. This applies when the minor has consented to the mental health care and there are no exceptions.86
In addition to the general laws on confidentiality for minors, California law refers to specific services and situations in which, barring an exception to confidentiality, the therapist may not inform a parent or guardian without a minor’s permission. These include reportable infectious, contagious, or communicable diseases, sexually transmitted diseases, prevention or treatment of a minor’s pregnancy, HIV/AIDS services and status, and rape treatment, so long as the minor is not under twelve and the provider does not reasonably suspect the parent or guardian to have committed the rape. This law stipulates that the provider document attempts to contact the parents or guardians regarding the rape.87
A provider cannot require a minor to waive confidentiality as a condition of receiving treatment. Such an act would be coercive, especially since the conditions under which confidentiality is excepted are specified in the law.88
Pregnancy of a Minor
The pregnancy of a minor client, coupled with an invocation of privacy, is an example situation that may involve several laws and clinical considerations. By itself, pregnancy is not necessarily a sign of abuse even though it is a minor who is pregnant.89 It depends on the ages of the client and the individual or individuals with whom she had sex. It does not necessarily show that there is threat of harm to self or others. It does not necessarily create liability for the therapist if he or she honors client confidentiality, even though there are physical and emotional risks involved in decisions pertaining to the pregnancy, such as that of abortion.90 Another question is whether the parents would play a constructive role if informed. This can be a good example of a situation with multiple laws and clinical variables in play, and where it may be important to get legal advice.
Custody
Often, only one parent will have custody. This is called sole legal custody. The sole legal custodian has the authority to make decisions regarding the welfare of the child. Generally the therapist must at least gain consent of the custodial parent or parents for treatment and release of information for children.
When the therapist does not have access to both parents, the therapist may wish to review the court order to make sure that treatment and any releases of information will not intrude upon the rights of the other parent.91
If the court order is vague and the therapist is not on solid ground, it is important to prevent disruption of therapy that can occur in a legal battle, and to reduce vulnerability on the part of the therapist to a complaint. In such a case, the therapist may insist that both parents agree before treatment will commence. In the absence of that agreement, the therapist may decide to refuse to treat until the parent gets a court order specifically addressing the issue. It may be adequate to ask that the attorney for the parent requesting treatment of the child provide a letter indicating that the parent is compliant with existing court orders.92
It is important that the therapist not be manipulated or intimidated by a parent who may have misunderstandings about these issues and who may demand concessions from the therapist that are not in the best interest of the child and are not legally defensible. The therapist must realize that a litigious party may be quick to complain about or sue a therapist who makes an error such as treating a child without the custodial parent’s consent.
Even when there has been agreement between parents regarding the treatment of their child and treatment has begun, one parent may later communicate to the therapist that he or she is withdrawing or revoking their authorization to treat the child. This may occur despite the fact that the other parent and the child want treatment to continue, and that it is in the best interest of the child.
In this situation, the welfare of the child generally dictates that the therapist take the same position regarding termination of treatment as he or she did regarding initiation of treatment. That is, that both parents must consent to the termination of treatment. In other words, the therapist will not stop the child’s treatment on the sole basis that only one of the parents has demanded this. This rationale is strongest when the court order specifies that both parents must consent to treatment.93
Early Age of Consent
There are circumstances in which a minor may consent to outpatient mental health treatment without parental permission as early as twelve years of age, and without being emancipated. This is so when the minor would present a danger of serious physical or mental harm to self or others without the mental health treatment or counseling, or if the minor is the alleged victim of incest or child abuse. However, the minor must be assessed as being sufficiently mature to participate intelligently in outpatient treatment.94
Death of patient
The right to confidentiality continues after death, but there are limits to confidentiality in this case as well. The therapist should report to the authorities any suspicion that the death was the result of a crime. The therapist should cooperate with information requests by the coroner.72
After death, the individual’s legal representative holds privilege.95
Insurance
Patients are often naïve regarding the nature and responsibilities associated with their insurance policies. In the interest of informed consent, and avoiding trouble down the road, the therapist should help the patient understand what information will be provided to their insurance provider, and the patient’s ultimate responsibility for payment. 96 Typically, this information includes a diagnosis and dates and types of treatment. However, managed care companies that perform functions such as provider network and utilization management for the insurer may require additional clinical information in order to authorize additional care.98
HIV/AIDS
A client with HIV/AIDS does not typically pose a serious and immanent threat of violence to an identified individual in such a manner that the therapist would be mandated to report it as a threat.99 California law specifically states that HIV/AIDS status is confidential medical information.98
An important point here is that a threat to the confidentiality of individuals positive for HIV, while it may protect some sexual partners, it would also pose a threat to public health by discouraging people from disclosing their status and receiving treatment.100
Boundaries
Boundaries refer to the judgments that we make about our rights and needs in regards to each other. Boundary crossings refer to legitimate ways therapists contact or confront patients, while boundary violations refer to unfair or excessive measures or manipulation. Respect for boundaries equates for respect for the rights of the patient. Something as subtle as sitting too close to a patient that feels uncomfortable about it may be a boundary violation, because it may impede therapy even if the patient is not conscious of it. Guthiel and Gabbard have referred to a boundary as, “the edge of appropriate behavior.”101
Therapists should not be dissuaded from effective interventions because of overly rigid or outdated definitions of boundaries. For example, therapists have observed that an adolescent with emotional problems may say much more on a walk or bicycle ride than sitting face to face in an office. Referring to seeing a client outside of an office setting as a dual relationship would be excessive in this case. In the words of Gutheil and Gabbard, “The critical role of context must be considered whenever a boundary problem has been alleged, and boundaries must be regarded as flexible standards of good practice rather than lists of generically forbidden behavior.” 102
Simon and Williams note the existence of widely accepted, but general guidelines, saying, “Although no universally accepted boundary standards exist, broadly based boundary guidelines have received general acceptance among mental health professionals.”103
The greater risk a therapist has for trespassing on a client’s boundaries (because, for example, of a tendency toward impulsiveness or because of difficulty parsing subtle body language), the more the therapist should rely on the specific guidelines for therapist behavior from their training. Therapists who are especially adept at sensing their client’s comfort level and adapting to client’s cultural backgrounds will have more to go on, though they should not become overconfident until they have a track record of success in providing therapy. Training and textbooks for psychotherapists often provide very specific and helpful guidelines on issues such as touch, expressions of concern, fee adjustments, pro bono work, the provision of case management and reports and the amount to charge for such services, and so forth.
Diversity
People of different cultures may have very different ideas and feelings about boundaries. Therapists in training from highly communal cultures have claimed to feel very awkward in refraining from freely offering help that would be considered excessive in western contexts. Physical proximity, the significance of touch, the value of individuality and assertiveness, and many other factors are all culturally sensitive issues. Therapists must collaborate with patients in choosing valid therapeutic outcomes, and this can require cultural sensitivity. It is an excellent subject for continuing education, particularly where the cultures of populations the therapist comes into contact with are concerned. Cultural differences are not necessarily matters of country of origin. Class and lifestyle differences can be sources of misunderstanding and conflict as well.
Minority populations, whether of a minority race, sexual orientation, disability or other factor, tend to experience more stigma, discrimination and violence, and to have more stress in adapting to mainstream culture and activities. This can bring them to psychotherapy at higher rates than the general population.104
These are additional reasons for psychotherapists to gain training and experience with minority populations.
Being a member of a minority population, however, does not automatically endow the therapist with all the skills necessary to work with that population. It does, however, increase the risk of loss of objectivity or boundaries through overidentification or seeing the client as a source of support or sexual gratification. Specialized training is still advisable.
Small Communities
Therapists must deal with a challenge to the management of boundaries in smaller communities, whether they are social groups that the therapist is involved in, or actual geographic communities such as small towns. It may be a hardship for a therapist in a small town to go to another town for all social and business involvement, and likewise, it may be a hardship for the therapist to limit his or her practice to another town when he or she lives in an isolated area. Therapists must be very careful to establish expectations on the part of their clients regarding confidentiality and how to interact in public settings when the patient encounters the therapist. Often, the therapist must take a cue from the client as to how to interact, so long as it is in the best interest of the client.
Rather than rigidly avoiding any form of dual relationship in a small community, it has been recommended that boundary guidelines be applied flexibly in order to adapt boundaries to small communities.106
Similarly, therapists may be involved in social groupings, but in a limited manner, that allows them to interact with people in a way that may result in their contacts coming to see them or in referring people to the therapist. Such social groupings may include classes and lectures that the therapist conducts, or even certain social groupings that the therapist does not depend upon for social support. For example, a therapist who uses art and who is involved in an organization that promotes art therapy may be visible in that social network as a therapist, and derive clients from that involvement. However, the involvement is primarily as a contribution to the community, rather than an intimate social support network for the therapist.
The therapist will be even more challenged when an acquaintance refers someone to them. If the acquaintance is likely to become a personal friend, then it is also likely that the person being referred will become a part of the therapist’s intimate social network. In that case, the referral should be directed to another therapist.
It has been said that we have the morals that we can afford. This could be taken as advice to maintain solid financial footing while developing a practice. A good means of doing this is by gaining experience in employment that involves a great deal of clinical decision-making and provision of counseling or psychotherapy. This serves the dual purpose of building experience while interacting more intensively with other clinicians that is typical in private practice, as well as maintaining and building a financial base for practice development if a private practice is desired.
Sex with Clients
The relationship between therapist and client is fraught with motives and needs that can result in sex between therapist and client. This problem is sufficiently notorious, that it is addressed specifically by the law as unprofessional conduct. There was even a senate Task Force on Psychotherapist and Patient Sexual Relations Sex with clients is subject to significant penalties. Any client that a therapist has sex with is referred to as a “former client.” The therapist is the “former therapist.” This stresses the profound change in the relationship, and the inappropriateness of continuing therapy with such a client.
Psychotherapist sex with a client is illegal during therapy, within two years after the termination of therapy, when therapy is terminated prematurely in order to have sex after termination, and by means of therapeutic deception (“…a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient's or former patient's treatment.”)107
In the Introduction to the pamphlet Professional Therapy Never Includes Sex, developed by the California Department of Consumer Affairs, the taboo is explained in a very straightforward way: 108
Consumers are looking for professionals they can trust. Therapists value the trust of their patients. When this mutual trust is violated by sexual exploitation, everyone loses. The patient loses an opportunity for improved health and becomes a victim. The therapist stops being a healer and becomes a victimizer. And the profession itself loses when the good reputation of the many is diminished by the illegal conduct of a few.
If a therapist learns of sex between an adult client and a former therapist of that client, the therapist is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient.109 This brochure strongly encourages clients to complain to the state board about a therapist who has encouraged a sexual relationship with the client, saying, “If you are a victim of sexual abuse by a therapist, it’s important for you to report your experience to the board that licenses your therapist.”110 However, the therapist is not permitted to report this violation, because of laws protecting client confidentiality. Such information is protected as private.
It took a long time for the scope and even the existence of the problem to be acknowledged. In the late 1960’s, the first research into the subject was undertaken, but the resulting report was suppressed by the Los Angeles APA, despite its own ethical prohibition against suppressing research findings.111
The earliest research into incidence rates for sexualized contact with health care providers came from a survey of psychiatrists, obstetrician/ gynecologists, surgeons, internists and general practitioners, and reported that as many as thirteen percent indicated that they had engaged in erotic behavior with patients, with 7.2% acknowledging sex. Of the providers surveyed, psychiatrists and surgeons reported the lowest rate of erotic contact, at 19%.112
In the early 1970’s, data from malpractice carriers and a poll of psychiatrists revealed that the problem was far more common than believed. In 1971, 11% of male psychiatrists admitted to having sex with at least one patient. 80% of those psychiatrists had sex with multiple patients.113
It appears that the incidence rates of erotic contact between psychotherapists and their patients has decreased a great deal as a result of improved awareness of the issue, its consequences, and because of the large number of successful criminal prosecutions and civil suites, beginning with the 1968 case of Zipkin v. Freeman.114m The legal bases for civic suits include negligence, malpractice and breach of fiduciary duty. Legislation was formulated beginning in 1983 that now includes criminal and civil statutes.114
The change in perception that began in the 1970’s resulted in claims of sexual abuse by therapists and physicians to begin to be taken seriously. In the decades preceding this change, it was believed that such abuse was rare, that allegations were fantasies, and that allegations of incest were invalid for the same reasons. More time passed before there were laws and ethical codes addressing the problem. It was not until 1991 that the American Medical Associations Council on Ethics and Judicial Affairs codified the injunction against sex between physicians and their patients.115 Rules comparable to the AMA’s were later adopted by the American College of Obstetricians and Gynecologists (1997) and the American Academy of Pediatrics (1999).
Research has associated the following problems resulting or being increased in patients by sex with their therapist: sexual dysfunction, anxiety disorders, psychiatric hospitalizations, suicide risk, depression, dissociative behavior, guilt, shame, anger, confusion, hatred, inability to trust and feelings of worthlessness.116 It has been estimated that only four to eight percent of victims ever report these experiences.117
It appears that patients suffer similar kinds of harm at similar rates regardless of the type of health care provider with whom they had sexualized contact.118
Controversies remain as to the degree to which clients are harmed and the kind of compensation that should be required in civil suits. Research showing harm in the form of mental disorders resulting from such contact has been criticized on methodological grounds as well as on the bases that a single incident or series of incidents that do not qualify as precursors for post traumatic stress disorder within the DSM-IV criteria cannot be alleged to be the sole source of the disorder in a civil suit.
Although flaws have been pointed out, surveys of patients who have experienced sexual relationships with their therapists offer alarming numbers and types of harm. Even if one takes the position that this kind of harm is not typically the result of sex with a therapist, there remain the matters of abuse of power, the damage to the investment the client has made in psychotherapy, the time and creative energies that the therapist has taken from the client, and the stresses and distractions posed by subjecting the client to circumstances that are highly socially stigmatized and humiliating. In addition, from the perspective of society, there is the damage to the reputation of the profession of psychotherapy, the effect this can have in reducing utilization of appropriate mental health services, and the resulting harm to citizens and society at large. The power imbalance between a psychotherapist and patient brings into question the idea that there can be meaningful consent on the part of the patient.119
Add to this the likelihood that a sexual relationship will cloud the judgment of the therapist, potentially resulting in harm or at least inadequate mental health care as a result of poor professional judgment. There is also the data from research indicating that physicians most likely to engage in sex with patients that result in professional disciplinary processes are more likely to have impairments reflected in inappropriate conduct in medical school. This conduct included irresponsibility, cognitive patterns of being special in ways that made them feel that they were above the rules, and similar problems. Assuming that this applies to other professional groups, including psychotherapists, this is an added incentive for not only a disciplinary process, but also for requiring assessment, supervision and treatment of therapists who have engaged in boundary violations as needed, in cases where such therapists have retained or are working to regain the license to practice.
It is very difficult to determine an accurate rate of occurrences of sex between therapists and clients. Early studies yielded numbers around 10% of psychiatrists and psychologists. Later studies showed the numbers dramatically declining. But it is unknown whether the increased stigma and attention to the issue resulted in underreporting or an actual reduction in the rate.120
Sexual misconduct has resulted in a high percentage of malpractice suits against psychotherapists.121
The taboo against healers engaging in sex with their patients is documented in the Nigerian Healing Code and the Hippocratic Oath.122
Research on outcomes of treatment for therapists who sexually offend has not been encouraging, and these therapists have the ability to keep their sexual activities with clients secret for extended periods of time.
Some therapists are not merely vulnerable to falling in love or lust with a client, but are actually predatory in their view of clients as sources of sex. A psychotherapist in Colorado decided to become a coach because he believed that he would no longer be subject to laws pertaining to boundaries between client and therapist. This was a poor choice, however, because coaching can easily fall under the law as performing psychotherapy, because of how psychotherapy is defined in Colorado and in California.123 This is especially true when a psychotherapist performs coaching, because the patient has the reasonable expectation that the therapist will use psychotherapeutic skills and knowledge.124
The following is text from California law pertaining to sex between therapist and client: 125
Any act of sexual contact, sexual abuse, sexual exploitation,
sexual misconduct or sexual relations by a therapist with a
patient is unprofessional, illegal, as well as unethical as set
forth in Business and Professions Code sections 726, 729,
2960(o), 4982(k) and 4992.3(k).
“Sexual contact” means the touching of an intimate part of
another person, including sexual intercourse.
“Touching” means physical contact with another person either
through the person’s clothes or directly with the person’s skin.
“Intimate part” means the sexual organ, anus, groin or buttocks
of any person and the breast of a female.
Summary:
Sexual contact and misconduct by a therapist with a client is illegal. Therapists who learn that a client has had sex with a prior therapist must give the client a pamphlet designed by the state that prompts the client to report it to the board. Sexual misconduct includes tactics such as terminating therapy in order to have a sexual relationship with a client. Sex with a client is illegal for two years after termination of therapy with the client.
Duty to Warn: Tarasoff
Tarasoff and Dangerous Patients
The Tarasoff rulings and subsequent legislation have to do with the duty of the psychotherapist to warn and protect a person who is the intended target of a potentially violent client. The issue has a history of court rulings that have dramatically changed in tone over time, and legislation that was altered significantly as a result of lobbying by the clinical community.126
When a client (or a family member of the client) discloses that the client poses a threat of grave bodily injury to an identifiable victim, the therapist has a duty to warn and protect the intended victim. This duty can be “discharged” by informing the intended victim and the police of the threat. Generally, this should be done immediately. The law is worded so that there may be other ways of discharging the duty.127 However, there is a tradition of interpreting Tarasoff responsibilities as including a duty to warn the intended victim as well as the police.
In the original incident that led to the Tarasoff ruling by the California Supreme Court, a therapist was successfully sued for failing to warn an individual that his client posed a threat to that person. The therapist’s client killed the person.
After the first California Supreme Court ruling, the court revisited the decision in an unusual move. It established, in this second ruling in 1976, a duty to protect, avoiding language expressing a duty to warn.128 Nonetheless, the legislation, as it stands now, includes mention of a duty to warn. Given the variability in court judgments regarding Tarasoff, and given the existence of jury instructions that affirm a duty to warn, provision of a warning may become more than a safe harbor from liability, but a requirement, based on additional case law.
Numerous states have created legislation that is intended to reflect the intentions of the Tarasoff rulings. In California, the law does not establish a direct mandate to disclose. Instead, it protects the therapist from liability for making the disclosure.
A California appeals court ruling in 2004 extended the interpretation of this law to include information that comes from the client’s immediate family.129 This occurred after two court cases in which clinicians were held responsible for failing to warn an intended victim when the information regarding the threat came from an immediate family member.130
(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
(b) There shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist who, under the limited circumstances specified above, discharges his or her duty to warn and protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. 131
The therapist is not expected to attempt to prevent violent acts that cannot reasonably be predicted. It is well known that mental health professionals have a very limited ability to foresee violence. In the case against a psychiatrist who failed to prevent the attempted assassination of president Ronald Reagan by a mentally ill man, a Colorado District Court wrote, “It is this requirement of foreseeability which has led numerous courts to conclude that a therapist or others cannot be held liable for injuries inflicted upon third persons absent specific threats to a readily identifiable victim.”132 The court ruled in favor of the psychiatrist (defendant) even though it accepted the notion that the psychiatrist had provided substandard care.133
Nonetheless, conscientiously documenting sound clinical reasoning can reduce liability. Even if the therapist did not act to prevent violence that was foreseeable, well-reasoned clinical judgement may result in a finding for the therapist. Though the judgement was regrettable in hindsight, it matters if it was supportable when it took place.134 A failure to demonstrate sound clinical judgement heightens liability. Courts have found against clinicians that have not adequately assessed the patient. That happened to a psychiatrist who failed to review existing records of a patient who later became dangerous.135
The very nature of a diagnosis may afford some protection in the duty to warn or hospitalize. For example, in finding in favor of the VA in such a case, the court stated, “It is impossible to predict future behavior in paranoid schizophrenics because their behavior may completely change in a matter of minutes”136
The issue of reporting, hospitalizing or warning can become murkier, as when a person has a substance use disorder as well as a safety-sensitive position, such as a physician or airline pilot. Legal consultation is important in these cases because they may be very nuanced.137 A therapist who reported an alcoholic to the authorities on the basis that the individual admitted to repeatedly driving while intoxicated was successfully sued by the client for breach of confidentiality.138
From the point of view of society, the challenge of such cases results from the inherent tension between the duty to protect public safety, and the duty to preserve public utilization of mental health services. Too much disclosure will erode public trust in confidentiality, alienating people from mental health services. Too little disclosure will result in increased harm to citizens.139
Additional Guidelines
360 Degree Quality
360 degree quality management is a business term that refers to having a well-rounded approach to quality. It involves taking stock and intervening anywhere in the spectrum of services and products that may adversely affect the customer experience of quality. Importing this concept to the provision of psychotherapy means reviewing infrastructure and policies necessary to ensure safety, consistent care, confidentiality, outcomes and all other aspects of quality care.
Examples of specific elements include having coverage while away in case of a patient emergency, secure and confidential records management, orientation and contracts with staff and contractors and services, and consistent provision of informed consent at the outset of therapy. A professional will, that is, having a will that specifies how your clinical and administrative records will be handled in the event of your death or infirmity, is an important example. It is specifically considered to be an important ethical requirement.
Thinking of therapy as a complete cycle, with a beginning, middle and end, can help the therapist enhance quality. Initiation and termination of therapy are each very important subjects that command considerable attention from ethical, legal, and clinical perspectives. Termination, for example, brings up issues such as avoiding patient abandonment (such as through transfer of care), terminating when therapy is no longer cost effective for the client (as opposed to the therapist), appropriate follow up, making sure the patient feels comfortable about resuming therapy if needed, and collaboration with the client to ensure a clinically appropriate termination process.
Assessment
One of the most important criticisms leveled at the mental health field is the inadequacy of assessment, and the resulting errors in diagnosis. Research has shown a tendency for therapists to have pet diagnoses and to do overly brief assessments that rely too much on initial comments by the client. In many cases, problems such as drug and alcohol abuse, domestic violence, cognitive impairment, and personality disorders go unacknowledged and untreated, ultimately sabotaging the treatment.
Treatment Plans and Collaborating with Clients
Identifying Blocks to Treatment
Highly naïve, defensive, and cognitively impaired clients, especially those with problems that impair thinking and judgment, such as substance abuse, antisocial personality disorder, and psychosis, may be very difficult to collaborate with. There are many reasons such clients may be unable to see the wisdom of the treatment plan the therapist is inclined to propose. One of the highest arts of psychotherapy is that of rapport-building with these defensive, resistant clients. Some trainers say that there is no such thing as a resistant client, only a failure to gain rapport. This is an extreme position taken in order to make a point. Clients should not be written off as resistant, at least not after creative work to gain collaboration. After all, clients come to psychotherapy because they are experiencing mental or emotional distress. The greatest source of such distress is that of mental disorders. A knee-jerk response to a resistant client is akin to saying that such persons should seek mental health treatment from a skilled therapist. The obvious conclusion is that the therapist seeing the resistant client needs more training, specifically on managing defenses and difficult-to-treat problems.
There are two primary blocks to gaining agreement on the treatment plan. One is that the client has an agenda that is antithetical to their well being. Substance abuse is an obvious example. This “agenda” may be conscious or unconscious, but can be very powerful. Many substance abusers do not hit bottom, but die instead. The other block is high sensitivity to any specific demands that tend to occur in psychotherapy. These demands can include work to increase inner awareness, work to take on new demands such as being more assertive, and even tasks as seemingly innocuous as relaxing or imagining a positive outcome in a job interview. Generally, these high sensitivities occur in people with high levels of dissociation and significant trauma histories. Often this is coupled with difficulty maintaining emotional stability or engaging in normal self-soothing behaviors. Borderline Personality Disorder involves a challenging mix of these problems.
One of the most important areas in which a therapist can grow, is in developing skill in working with challenging clients in a way that does not alienate or destabilize them. Taking this on as a professional challenge is very commendable. Some therapists unwittingly write off such clients or take their behavior personally, responding in a moralistic, but futile manner.
Whither Morality?
As scientific study of mental health yields new information, it challenges moral positions that are so much a part of our culture that people defend and act them out unconsciously, but often with very firmly held rationales that do not fully address the sources of their biases. Polls have shown that much of the American public believe that persons who exhibit mental illnesses could behave normally if they wanted to. The high number of persons with mental illnesses in jails is testimony to the bias toward personal responsibility that overrides current medical knowledge about the nature of those mental illnesses, and worse, the ability of the medical and psychotherapy fields to treat and manage those illnesses in less restrictive and non-punitive environments. If jail is hellish for a person without a mental illness, that hell must be multiplied many times over for a person with a mental illness. Such people are not merely sensitive to their environment and more inclined to regress or decompensate, but are also much more vulnerable to abuse by other inmates.
Attributions of blame come from pervasive beliefs of the culture in which they occur. Belief in demonic possession led to thousands of deaths of persons believed to be possessed or practicing witchcraft. Bizarre tests for these conditions had no basis in reality.
As demonic metaphysics yielded to a more scientific perspective, the bulk of society has managed to hold onto a more subtle metaphysics of personal responsibility. Often this perspective is revealed by a simple act of complacence; the statement that a person is, “just that way.” This implies that there is no explanation other than free will. This, in turn, implies that there can be no alternative but making life miserable enough that the person will stop the behavior. In other words, when suffering, the person is getting what he or she deserves.
This simplistic view fails to account for the dramatic improvements in behavior and stability that occur when appropriate treatment is provided. It cannot square itself with the increased attention, responsibility and academic performance of a child with attention deficit disorder who receives appropriate medication, nor the veteran with post traumatic stress disorder who becomes interested in seeking employment after successful psychotherapy. There was no punishment involved in such dramatic turnarounds.
Where there is an impulse on the part of the therapist to punish, write off, or blame the client, the therapist should carefully inspect the source of such impulses, and make sure that he or she truly is up-to-date on the evidence-based approaches to the problem at hand. Morality in a clinical setting should be an expression of values that contribute to the welfare of clients, not the poorly inspected acting out of cultural patterns that are based on harmful beliefs such as demonic possession, the absence of a medical basis for mental disorders, and the therapist as an authority empowered with the responsibility to dispense punishment for what he or she had judged to be bad behavior.
The most essential red flag for the therapist is a sense of impulse that is not well inspected for groundedness in clinical knowledge that can be defended in terms of the treatment plan and evidence-based practice. Perhaps the key to today’s morality is in being highly accountable for getting outcomes that express our highest values.
Continuing Education, Up-To-Date Knowledge
There is a strong trend in our culture to be content with beliefs that support our biases and satisfy our desire to have socially desirable opinions, or at least opinions that are desirable within our professional community. The satirist Stephen Colbert refers to this as “truthiness.” This is identical to the concept from George Orwell’s dystopian and socially critical novel, 1984, of “bellyfeel.”
What matters, though, is what matters. That is to say, that outcomes are our business. The more research is available, and the more sophisticated the research becomes, the more we are challenged to adapt our opinions and practices to new, useful knowledge. It is very important that psychotherapists not only engage in continuing education, but that they select educational material and journal articles that are recent and help the therapist understand current research.
An excellent example of an important trend in research is the influence of genetics on our understanding of psychology. Genetics is upending some of our beliefs about the causes of developmental, behavioral and family problems. Research is showing us that there is a widespread influence of genetic factors on risk to psychopathology.140
For example, consider the widely held belief that corporal punishment causes children to become violent. Genetic research suggests that children are not made more violent by corporal punishment. Instead, it appears that the more violent or conduct disordered children are more likely to receive corporal punishment, and are more likely to have parents who are prone to administering corporal punishment.141 142
One study was this straightforward, “There is a cross-situational conduct problems' phenotype, underlying the behavior measured by all informants, that is wholly genetic in origin. No significant influence of shared environmental effects was found.”143
For many cases, this knowledge will shift the focus to interventions that assist multiple family members in reducing incidences of violence, crime, and harmful involvement with authorities, from the prior focus on preventing corporal punishment as an isolated problem and cause of violence in minors and adults. Genetic research is likely to expand the emphasis on systems interventions, which are emphasized in the training of social workers and family therapists. This kind of systems thinking is likely to expand attention beyond the victim perpetrator dyad to include a broader assessment of needs and potential interventions.
The cornerstone of continuing education is asking what makes a difference in people’s lives.
Managed Care
Adapting to managed care has posed ethical challenges to therapists. Therapists have been tempted to use an inaccurate diagnosis in order to get the client’s insurance to cover treatment, therapists have been troubled by managed care companies refusing to cover legitimate and necessary treatment, and therapists have been pushed to provide treatment that is too short where shorter treatment is rewarded with more referrals regardless of the client diagnosis. Managed care companies conduct utilization review in which statistics pertaining to each therapist result in designation of certain therapists as preferred providers for their referrals. A therapist was told by a managed care executive that she should consider reducing the ratio of highly traumatized clients she saw, even though this was her specialty, in order to change her utilization numbers and receive more referrals.144 Obviously, this recommendation would result in more referrals of these challenging cases to less specialized and qualified therapists, and presumable result in poorer outcomes and higher drop out rates. The economic concept of “perverse incentives” refers to people and systems reacting to incentives in a manner that is not good for their customers or for society, especially where there is a duty to society, such as to prevent pollution or improve clinical services. It is a ponderous issue in managed care. Peer support can be especially valuable in navigating managed care issues.
Telemedicine and Online Treatment
Psychotherapists have found a number of ways to use electronic communication in conducting and augmenting therapy. This may include email, instant messaging, and videoconferencing. This is referred to as telemedicine, although California law indicates that a telephone conversation does not constitute telemedicine.145
Telemedicine is becoming increasingly commonplace, and is used to increase the services available to rural areas, and to provide specialists to areas where such specialists are not readily available. It is also used to reduce costs by reducing travel, and to increase appropriate utilization by individuals who have difficulty travelling to the physician’s office. All of these benefits can apply to psychotherapy so long as certain standards are applied. There is a growing body of research supporting the use of telemedicine and telephone contact in psychotherapy.146 147 148 149
Therapists are cautioned to carefully consider the risks inherent in telemedicine. It is important to have policies and procedures in place for responding to interruptions in service, for evaluating whether a patient is appropriate for telemedicine, and for coping with the limitations inherent in the medium being used. The mood and intent of a communication can be misperceived more easily when it is not in face-to-face communication. The provider must be competent in the use of the technology required for the services he or she intends to provide.
The confidentiality of patient information is at increased risk through telemedicine. The therapist should be fully competent in protecting privacy when using the desired technology.
Telemedicine makes it feasible to work with patients who do not reside in the same state as the therapist. The state in which the patient resides may have laws regulating such practice, and it may be considered an unlicensed practice of psychotherapy and, as such, illegal.
The Business and Professions Code defines telemedicine as:
For the purposes of this section, "telemedicine" means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes "telemedicine" for purposes of this section.150
The Business and Professions Code states:
…prior to the delivery of health care via telemedicine, the health care practitioner who has ultimate authority over the care or primary diagnosis of the patient shall obtain verbal and written informed consent from the patient or the patient's legal representative.151
According to the BBS, marriage and family therapists are required to fulfill the same responsibilities regarding confidentiality when practicing via telemedicine as they are in any other setting.152
The business and Professions Code provide very specific instructions as to how to manage informed consent, and states that the following are to be included in the information presented to the client:
(1) The patient or the patient's legal representative retains the option to withhold or withdraw consent at any time without affecting the right to future care or treatment nor risking the loss or withdrawal of any program benefits to which the patient or the patient's legal representative would otherwise be entitled.
(2) A description of the potential risks, consequences, and benefits of telemedicine.
(3) All existing confidentiality protections apply.
(4) All existing laws regarding patient access to medical information and copies of medical records apply.
(5) Dissemination of any patient identifiable images or information from the telemedicine interaction to researchers or other entities shall not occur without the consent of the patient. 153
The code also indicates how the consent is to be handled:
A patient or the patient's legal representative shall sign a written statement prior to the delivery of health care via telemedicine, indicating that the patient or the patient's legal representative understands the written information provided pursuant to subdivision (a), and that this information has been discussed with the health care practitioner, or his or her designee.
The written consent statement signed by the patient or the patient's legal representative shall become part of the patient's medical record.154
Predicting Violence and Suicide
Mental health professionals are notoriously poor at predicting violence, especially in the absence of a history of violence, and they consistently overpredict violence.155 156 157
Our difficulty in predicting violence is a key reason for the stringent laws set up to protect people from being held in mental hospitals based on overzealous assessments. The other side of the coin, of course, is that untreated individuals may be violent as a result of these same stringent laws. There therapist must be well-versed in managing potential violence and suicide, as well as understand the benefits to society of the protections against confinement as well as the legal basis for confinement.
Conclusion
Over the history of psychotherapy knowledge, sophistication and tools have converged for effective, humane, clinical practice and for providing services to a diverse population. Know the principles upon which the specific ethical guidelines and laws are based, and you will work with more relevance and confidence. Remember the resources available for resolving ethical and legal concerns for a less stressful and better supported practice. You are part of a profession filled with great minds discovering new answers.
MAKE SURE YOU READ THE FOLLOWING APPENDICES:
Appendix A: California Codes on Unprofessional Conduct
CALIFORNIA CODES BUSINESS AND PROFESSIONS CODE SECTION 4982-4982.3
4982. The board may refuse to issue any registration or license, or may suspend or revoke the license or registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct. Unprofessional conduct shall include, but not be limited to:
(a) The conviction of a crime substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter. A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter shall be deemed to be a conviction within the meaning of this section. The board may order any license or registration suspended or revoked, or may decline to issue a license or registration when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or, when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw a plea of guilty and enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.
(b) Securing a license or registration by fraud, deceit, or misrepresentation on any application for licensure or registration submitted to the board, whether engaged in by an applicant for a license or registration, or by a licensee in support of any application for licensure or registration.
(c) Administering to himself or herself any controlled substance or using of any of the dangerous drugs specified in Section 4022, or of any alcoholic beverage to the extent, or in a manner, as to be dangerous or injurious to the person applying for a registration or license or holding a registration or license under this chapter, or to any other person, or to the public, or, to the extent that the use impairs the ability of the person applying for or holding a registration or license to conduct with safety to the public the practice authorized by the registration or license, or the conviction of more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this subdivision, or any combination thereof. The board shall deny an application for a registration or license or revoke the license or registration of any person, other than one who is licensed as a physician and surgeon, who uses or offers to use drugs in the course of performing marriage and family therapy services.
(d) Gross negligence or incompetence in the performance of marriage and family therapy.
(e) Violating, attempting to violate, or conspiring to violate any of the provisions of this chapter or any regulation adopted by the board.
(f) Misrepresentation as to the type or status of a license or registration held by the person, or otherwise misrepresenting or permitting misrepresentation of his or her education, professional qualifications, or professional affiliations to any person or entity.
(g) Impersonation of another by any licensee, registrant, or applicant for a license or registration, or, in the case of a licensee, allowing any other person to use his or her license or registration.
(h) Aiding or abetting, or employing, directly or indirectly, any unlicensed or unregistered person to engage in conduct for which a license or registration is required under this chapter.
(i) Intentionally or recklessly causing physical or emotional harm to any client.
(j) The commission of any dishonest, corrupt, or fraudulent act substantially related to the qualifications, functions, or duties of a licensee or registrant.
(k) Engaging in sexual relations with a client, or a former client within two years following termination of therapy, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as asexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.
(l) Performing, or holding oneself out as being able to perform, or offering to perform, or permitting any trainee or registered intern under supervision to perform, any professional services beyond the scope of the license authorized by this chapter.
(m) Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.
(n) Prior to the commencement of treatment, failing to disclose to the client or prospective client the fee to be charged for the professional services, or the basis upon which that fee will be computed.
(o) Paying, accepting, or soliciting any consideration, compensation, or remuneration, whether monetary or otherwise, for the referral of professional clients. All consideration, compensation, or remuneration shall be in relation to professional counseling services actually provided by the licensee. Nothing in this subdivision shall prevent collaboration among two or more licensees in a case or cases. However, no fee shall be charged for that collaboration, except when disclosure of the fee has been made in compliance with subdivision
(n).
(p) Advertising in a manner that is false, misleading, or deceptive.
(q) Reproduction or description in public, or in any publication subject to general public distribution, of any psychological test or other assessment device, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the test or device.
(r) Any conduct in the supervision of any registered intern or trainee by any licensee that violates this chapter or any rules or regulations adopted by the board.
(s) Performing or holding oneself out as being able to perform professional services beyond the scope of one's competence, as established by one's education, training, or experience. This subdivision shall not be construed to expand the scope of the license authorized by this chapter.
(t) Permitting a trainee or registered intern under one's supervision or control to perform, or permitting the trainee or registered intern to hold himself or herself out as competent to perform, professional services beyond the trainee's or registered intern's level of education, training, or experience.
(u) The violation of any statute or regulation governing the gaining and supervision of experience required by this chapter.
(v) Failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered.
Appendix B: Code of Ethical Standards for Marriage and Family Therapists, Part I, California Association of Marriage and Family Therapists
The board of directors of CAMFT hereby promulgates, pursuant to Article VI, Section A 1. and 2. and Article VII, Section B 3. of the Association Bylaws, a Revised Code of Ethical Standards for Marriage and Family Therapists. Members of CAMFT are expected to be familiar with and abide by these standards and by applicable California laws and regulations governing the conduct of licensed marriage, and family therapists, interns and trainees. The effective date of these revised standards is May 1, 2002.
The practice of marriage, and family therapy and psychotherapy is both an art and a science. It is varied and often complex in its approach, technique, modality and method of service delivery. These ethical standards are to be read, understood, and utilized as a guide for ethical behavior. The general principles contained in this code of conduct are also used as a basis for the adjudication of ethical issues and/or complaints (both within and outside of CAMFT) that may arise. Ethical behavior, in a given situation, must satisfy not only the judgment of the individual marriage and family therapist, but also the judgment of his/her peers, based upon a set of recognized norms.
We recognize that the development of standards is an ongoing process, and that every conceivable situation that may occur cannot be expressly covered by any set of standards. The absence of a specific prohibition against a particular kind of conduct does not mean that such conduct is either ethical or unethical. While the specific wording of these standards is important, the spirit and intent of the principles should always be taken into consideration by those utilizing or interpreting this code. Violations of these standards should be brought to the attention of the CAMFT Ethics Committee, in writing, at CAMFT's administrative office, 7901 Raytheon Road, San Diego, CA 92111-1606, or at such other address as may be necessary because of a change in location of the administrative office.
Overview
1. RESPONSIBILITY TO PATIENTS
Marriage and family therapists advance the welfare of families and individuals, respect the rights of those persons seeking their assistance, and make reasonable efforts to ensure that their services are used appropriately. When patients are not physically present (e.g., therapy by telephone or Internet) during the provision of therapy, marriage and family therapists take extra precautions to meet their responsibilities to patients.
1.2 Marriage and family therapists are aware of their influential position with respect to patients, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore avoid dual relationships with patients that are reasonably likely to impair professional judgment or lead to exploitation. A dual relationship occurs when a therapist and his/her patient engage in a separate and distinct relationship either simultaneously with the therapeutic relationship, or during a reasonable period of time following the termination of the therapeutic relationship. Not all dual relationships are unethical, and some dual relationships cannot be avoided. When a dual relationship cannot be avoided, therapists take appropriate professional precautions to insure that judgment is not impaired and that no exploitation occurs.
1.2.1 Sexual intercourse, sexual contact or sexual intimacy with a patient, or a patient's spouse or partner, during the therapeutic relationship, or during the two years following the termination of the therapeutic relationship, is unethical.
1.2.2 Other acts which would result in unethical dual relationships include, but are not limited to, borrowing money from a patient, hiring a patient, engaging in a business venture with a patient, or engaging in a close personal relationship with a patient. Such acts with a patient's spouse, partner or family member may also be considered unethical dual relationships.
1.2.3 Marriage and family therapists do not enter into therapeutic relationships with persons with whom they have had sexual relationships.
1.3 Marriage and family therapists are aware of their professional and clinical responsibilities to provide consistent care to patients and do not abandon or neglect patients. Marriage and family therapists, therefore, maintain practices and procedures that assure undisrupted care. Such practices and procedures may include, but are not limited to, providing contact information and specified procedures in case of emergency, or therapist absence, conducting appropriate terminations, and providing for a professional will.
1.3.1 Marriage and family therapists terminate therapeutic relationships for clinically sound reasons and in an appropriate manner. Reasons for termination may include, but are not limited to, the patient is not benefiting from treatment, continuing treatment is not clinically appropriate, the therapist is unable to provide treatment due to physical or mental illness, or the treatment becomes ethically questionable.
1.3.2 Marriage and family therapists assist patients when terminating relationships by making reasonable arrangements for continuation of necessary treatment.
1.3.3 It is unethical to maintain therapeutic relationships solely for financial reasons.
1.3.4 It may be ethical to terminate a patient relationship for non-payment of fees.
1.4 Marriage and family therapists respect the right of patients to make decisions and help them to understand the consequences of these decisions. Marriage and family therapists provide adequate information to patients so that patients can make meaningful decisions about their therapy.
1.4.1 Marriage and family therapists inform patients of the potential risks and benefits of service consistent with sound clinical practice.
1.4.2 Marriage and family therapists inform patients of the extent of their availability for emergencies and for other contacts between sessions.
1.4.3 Marriage and family therapists advise their patient(s) that decisions on the status of their personal relationships are the responsibilities of the patient(s).
1.4.4 Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third party observation.
1.4.5 Marriage and family therapists are encouraged to inform patients as to the limits of confidentiality.
1.4.6 Marriage and family therapists are encouraged to inform patients at an appropriate time and within the context of the psychotherapeutic relationship of their experience, education, specialties, theoretical and professional orientation and any other information deemed appropriate by the therapist.
1.4.7 When therapy occurs by electronic means, marriage and family therapists inform patients of the potential risks and benefits, including but not limited to, issues of confidentiality, clinical limitations, transmission difficulties, and ability to respond to emergencies.
1.4.8 Marriage and family therapists inform patients of fee and fee arrangements prior to the provision of therapy.
1.5 Marriage and family therapists do not use their professional relationships with patients to further their own interests.
1.6 Marriage and family therapists continue therapeutic relationships only so long as it is reasonably clear that patients are benefiting from the relationship.
1.7 Marriage and family therapists assist persons in obtaining other therapeutic services if a therapist is unable or unwilling to provide professional help.
1.8 Marriage and family therapists do not abandon or neglect patients in treatment. If a therapist is unable to continue to provide care, the therapist will assist the patient in making reasonable arrangements for continuation of treatment.
1.9 When terminating employment or contractual relationships, marriage and family therapists primarily consider the best interests of the patient when resolving issues of continued responsibility for patient care.
1.10 Marriage and family therapists, when treating a family unit(s), shall carefully consider the potential conflict that may arise between the family unit(s) and each individual. Marriage and family therapists clarify at the commencement of therapy which person or persons are clients and the nature of the relationship(s) the therapist will have with each person involved in the treatment.
1.11 Marriage and family therapists do not withhold patient records or information solely because the therapist has not been paid for prior therapy services.
1.12 Marriage and family therapists consult, associate, collaborate with, and refer to physicians, other health care professionals, and community resources in order to improve and protect the health and welfare of the patient.
1.13 Marriage and family therapists advocate for mental health care they believe will benefit their patients. In appropriate circumstances, they challenge denials of care, or denials of payment for care, by managed care organizations, insurers, or other payers.
1.14 Marriage and family therapists disclose treatment alternatives to patients, whether or not there is coverage for such treatment under the terms of a managed care plan, insurance policy, or other health care plan.
1.15 When therapy is provided by Internet or other electronic media, marriage and family therapists ensure that patients are intellectually, emotionally, and physically capable of engaging in therapy by such means.
1.16 When a marriage and family therapist is not located in the same geographic area as the patient, he/she shall provide a name of another qualified mental health care professional and/or entity in the patient's locale for contact in case of emergency.
2. CONFIDENTIALITY
Marriage and family therapists have unique confidentiality responsibilities because the "patient" in a therapeutic relationship may be more than one person. The overriding principle is that marriage and family therapists respect the confidences of their patient(s).
2.1 Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.
2.2 When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.
2.3 Marriage and family therapists are aware of the possible adverse effects of technological changes with respect to the dissemination of patient information, and take reasonable care when disclosing such information. Marriage and family therapists are also aware of the limitations regarding confidential transmission by Internet or electronic media and take extra care when transmitting or receiving such information via these mediums.
2.4 Marriage and family therapists store, transfer, transmit, and/or dispose of patient records in ways that protect confidentiality.
2.5 Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of patients is maintained by their employees, supervisees, assistants and volunteers.
2.6 Marriage and family therapists use clinical materials in teaching, writing, and public presentations only if a written authorization has been previously obtained in accordance with 2.1 d, or when appropriate steps have been taken to protect patient identity.
2.7 Marriage and family therapists, when working with a group, explain to the group the importance of maintaining confidentiality, and are encouraged to obtain agreement from group participants to respect the confidentiality of other members of the group.
3. PROFESSIONAL COMPETENCE AND INTEGRITY
Marriage and family therapists maintain high standards of professional competence and integrity.
3.1 Marriage and family therapists are in violation of this Code and subject to termination of membership, or other appropriate action, if they: a) are convicted of a crime substantially related to their professional qualifications or functions; b) are expelled from or disciplined by other professional organizations; c) have their licenses or certificates suspended or revoked or are otherwise disciplined by regulatory bodies; d) if they continue to practice when they are no longer competent to practice because they are impaired due to physical or mental causes or the abuse of alcohol or other substances; or e) fail to cooperate with the Association or the Ethics Committee at any point from the inception of an ethical complaint through the completion of all proceedings regarding that complaint.
3.2 Marriage and family therapists avoid contractual arrangements which provide financial incentives to withhold or limit medically/psychologically necessary care.
3.3 Marriage and family therapists maintain patient records, whether written, taped, computerized, or stored in any other medium, consistent with sound clinical practice.
3.4 Marriage and family therapists seek appropriate professional assistance for their personal problems or conflicts that impair work performance or clinical judgment.
3.5 Marriage and family therapists as teachers, supervisors, and researchers, maintain high standards of scholarship and present accurate information.
3.6 Marriage and family therapists actively strive to understand the diverse cultural backgrounds of their clients by gaining knowledge, personal awareness, and developing sensitivity and skills pertinent to working with a diverse client population. Marriage and family therapists who provide therapy over the Internet or by other electronic media take extra measures to identify and understand the diversity, ethnicity, and cultural sensitivity of such patients.
3.7 Marriage and family therapists are aware of how their cultural/racial/ethnic identity, values and beliefs affect the process of therapy.
3.8 Marriage and family therapists remain abreast of developments in their field through educational activities and clinical experiences.
3.9 Marriage and family therapists do not engage in sexual or other harassment or exploitation of patients, students, interns, trainees, supervisees, employees or colleagues.
3.10 Marriage and family therapists do not assess, test, diagnose, treat, or advise on problems beyond the level of their competence as determined by their education, training and experience. While developing new areas of practice, marriage and family therapists take steps to ensure the competence of their work through education, training, consultation, and/or supervision.
3.11 Marriage and family therapists do not generally provide professional services to a person receiving treatment or therapy from another psychotherapist, except by agreement with such other psychotherapist or after the termination of the patient's relationship with the other psychotherapist.
3.12 Marriage and family therapists initiate services by Internet or other electronic media to patients located only in jurisdictions where the therapist may lawfully provide such services.
3.13 Marriage and family therapists take reasonable steps to prevent the distortion or misuse of their clinical and research findings.
3.14 Marriage and family therapists, because of their ability to influence and alter the lives of others, exercise special care when making public their professional recommendations and opinions through testimony or other public statements.
4. RESPONSIBILITY TO STUDENTS AND SUPERVISEES
Marriage and family therapists do not exploit the trust and dependency of students and supervisees.
4.1 Marriage and family therapists are aware of their influential position with respect to students and supervisees, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore avoid dual relationships that are reasonably likely to impair professional judgment or lead to exploitation. Provision of therapy to students or supervisees is unethical. Provision of marriage and family therapy supervision to clients is unethical. Sexual intercourse, sexual contact or sexual intimacy and/or harassment of any kind with students or supervisees is unethical.
4.2 Marriage and family therapists do not permit students, employees or supervisees to perform or to hold themselves out as competent to perform professional services beyond their training, level of experience, and competence.
4.3 Marriage and family therapists who act as supervisors are responsible for maintaining the quality of their supervision skills, and obtaining consultation or supervision for their work as supervisors whenever appropriate.
5. RESPONSIBILITY TO COLLEAGUES
Marriage and family therapists treat colleagues with respect, courtesy, fairness, and good faith, and cooperate with colleagues in order to promote the welfare and best interests of the patient.
5.1 Marriage and family therapists respect the confidences of colleagues that are shared in the course of their professional relationships.
5.2 Marriage and family therapists are encouraged to assist colleagues who are impaired due to substance abuse, emotional problems, or mental illness.
5.3 Marriage and family therapists do not file or encourage the filing of ethics or other complaints that they know, or reasonably should know, are frivolous.
6. RESPONSIBILITY TO RESEARCH PARTICIPANTS
Investigators respect the dignity and protect the welfare of participants in research and are aware of federal and state laws and regulations and professional standards governing the conduct of research.
6.1 Investigators are responsible for making careful examinations of ethical acceptability in planning studies. To the extent that services to research participants may be compromised by participation in research, investigators seek the ethical advice of qualified professionals not directly involved in the investigation and observe safeguards to protect the rights of research participants.
6.2 Investigators requesting participants' involvement in research inform them of all aspects of the research that might reasonably be expected to influence willingness to participate. Investigators are especially sensitive to the possibility of diminished consent when participants are also receiving clinical services, have impairments which limit understanding and/or communication, or when participants are children.
6.3 Investigators respect participants' freedom to decline participation in or to withdraw from a research study at any time. This obligation requires special thought and consideration when investigators or other members of the research team are in positions of authority or influence over participants. Marriage and family therapists, therefore, make every effort to avoid dual relationships with research participants that could impair professional judgment or increase the risk of exploitation.
6.4 Information obtained about a research participant during the course of an investigation is confidential unless there is an authorization previously obtained in writing. When the possibility exists that others, including family members, may obtain access to such information, this possibility, together with the plan for protecting confidentiality, is explained as part of the procedure for obtaining informed consent.
7. RESPONSIBILITY TO THE PROFESSION
Marriage and family therapists respect the rights and responsibilities of professional colleagues and participate in activities which advance the goals of the profession.
7.1 Marriage and family therapists remain accountable to the standards of the profession when acting as members or employees of organizations.
7.2 Marriage and family therapists assign publication credit to those who have contributed to a publication in proportion to their contributions and in accordance with customary professional publication practices.
7.3 Marriage and family therapists who are the authors of books or other materials that are published or distributed appropriately cite persons to whom credit for original ideas is due.
7.4 Marriage and family therapists who are the authors of books or other materials published or distributed by an organization take reasonable steps to ensure that the organization promotes and advertises the materials accurately and factually.
7.5 Marriage and family therapists recognize a responsibility to participate in activities that contribute to a better community and society, including devoting a portion of their professional activity to services for which there is little or no financial return.
7.6 Marriage and family therapists are concerned with developing laws and regulations pertaining to marriage and family therapy that serve the public interest, and with altering such laws and regulations that are not in the public interest.
7.7 Marriage and family therapists cooperate with the Ethics Committee and truthfully represent facts to the Ethics Committee. Failure to cooperate with the Ethics Committee is itself a violation of these standards.
8. RESPONSIBILITY TO THE LEGAL SYSTEM
Marriage and family therapists recognize their role in the legal system and their duty to remain objective and truthful.
8.1 Marriage and family therapists who give testimony in legal proceedings testify truthfully and avoid making misleading statements.
8.2 Marriage and family therapists who act as expert witnesses base their opinions and conclusions on appropriate data, and are careful to acknowledge the limits of their data or conclusions in order to avoid providing misleading testimony or reports.
8.3 Marriage and family therapists avoid, wherever possible, performing conflicting roles in legal proceedings and disclose any potential conflicts to prospective clients, to the courts, or to others as appropriate.
8.4 Marriage and family therapists, regardless of their role in a legal proceeding, remain objective and do not compromise their professional judgment or integrity.
8.5 Marriage and family therapists do not express professional opinions about an individual's mental or emotional condition unless they have conducted an examination of the individual, or unless they reveal the limits of the information upon which their professional opinions are based, with appropriate cautions as to the effects of such limited information upon their opinions.
9. FINANCIAL ARRANGEMENTS
Marriage and family therapists make financial arrangements with patients and supervisees that are understandable, and conform to accepted professional practices and legal requirements.
9.1 Marriage and family therapists do not offer or accept payment for referrals.
9.2 Marriage and family therapists do not financially exploit their patients.
9.3 Marriage and family therapists disclose, in advance, their fees and the basis upon which they are computed, including, but not limited to, charges for canceled or missed appointments and any interest to be charged on unpaid balances, at the beginning of treatment and give reasonable notice of any changes in fees or other charges.
9.4 Marriage and family therapists give reasonable notice to patients with unpaid balances of their intent to sue, or to refer for collection. Whenever legal action is taken, therapists will avoid disclosure of clinical information. Whenever unpaid balances are referred to collection agencies, therapists will exercise care in selecting collection agencies and will avoid disclosure of clinical information.
9.5 Marriage and family therapists ordinarily refrain from accepting goods, services, or other non-monetary remuneration from patients in return for professional services. Such arrangements often create conflicts and may lead to exploitation or distortion of the professional relationship.
9.6 Marriage and family therapists represent facts regarding services rendered fully and truthfully to third party payers.
10. ADVERTISING
Marriage and family therapists engage in appropriate informational activities, including those that enable lay persons to choose professional services on an informed basis.
10.1 Marriage and family therapists accurately represent their competence, education, training, and experience relevant to their professional practice.
10.2 Marriage and family therapists assure that advertisements and publications, whether in directories, announcement cards, newspapers, radio, television, Internet or any other electronic media, are formulated to accurately convey information that is necessary for the public to make an appropriate selection.
10.3 Marriage and family therapists do not use a name which could mislead the public concerning the identity, responsibility, source, and status of those practicing under that name and do not hold themselves out as being partners or associates of a firm if they are not.
10.4 Marriage and family therapists do not use any professional identification, including but not limited to: a business card, office sign, letterhead, telephone or association directory listing, Internet or any other electronic media, if it includes a statement or claim that is false, fraudulent, misleading, or deceptive. A statement is false, fraudulent, misleading, or deceptive if it a) contains a material misrepresentation of fact; b) fails to state any material fact necessary to make the statement, in light of all circumstances, not misleading; or c) is intended to or is likely to create an unjustified expectation.
10.5 Marriage and family therapists correct, wherever possible, false, misleading, or inaccurate information and representations made by others concerning the therapist's qualifications, services, or products.
10.6 Marriage and family therapists do not solicit testimonials from patients.
10.7 Marriage and family therapists make certain that the qualifications of persons in their employ are represented in a manner that is not false, misleading, or deceptive.
10.8 Marriage and family therapists may represent themselves as specializing within a limited area of marriage and family therapy, but only if they have the education, training, and experience which meet recognized professional standards to practice in that specialty area.
10.9 CAMFT clinical, associate and prelicensed members may identify such membership in CAMFT in public information or advertising materials, but they must clearly and accurately represent whether they are clinical, associate, or prelicensed members.
10.10 Marriage and family therapists may not use the initials CAMFT following their name in the manner of an academic degree.
10.11 Marriage and family therapists may use the CAMFT logo only after receiving permission in writing from the Association. Permission will be granted by the Association to CAMFT members in good standing in accordance with Association policy on use of CAMFT logo. The Association (which is the sole owner of its name, logo, and the abbreviated initials CAMFT) may grant permission to CAMFT committees and chartered chapters in good standing, operating as such, to use the CAMFT logo. Such permission will be granted in accordance with Association policy on use of the CAMFT logo.
10.12 Marriage and family therapists use their membership in CAMFT only in connection with their clinical and professional activities.
Violations of these standards should be brought to the attention of the CAMFT Ethics Committee, in writing, at CAMFT's administrative office, 7901 Raytheon Road, San Diego, CA 92111-1606, or at such other address as may be necessary because of a change in location of the administrative office.
i The terms psychotherapy, therapy and counseling are used interchangeably throughout the Ethical Standards.
ii The word "patient," as used herein, is synonymous with such words as "client" or "counselee."
iii The term "marriage and family therapist," as used herein, is synonymous with the term "licensed marriage, family and child counselor," and is intended to cover registered interns and trainees doing marriage, family and child counseling under supervision.
iv Dual relationships include multiple relationships with patients.
All known dates of ethical standards revisions: 5/02, 4/97, 4/92, 10/87, 9/78, and 3/66.
As part of this course, we ask that you review Chapter 13 of the Business and Professions Code of California (found at http://www.bbs.ca.gov/pdf/publications/lawsregs.pdf )
End of text. Now take the course quiz.
References
[1] The Oath, Hippocrates, translated by Francis Adams, MIT, accessed 8/13/08, http://classics.mit.edu/Hippocrates/hippooath.html
[2] Handbook of Professional Ethics for Psychologists: Issues, Questions, and Controversies By William T. O'Donohue, Kyle E. Ferguson, 2003, Sage Publications Inc, p. 185.
[3] CAMFT, Frequently Asked Questions, accessed 8/12/07, http://www.camft.org/scriptcontent/index.cfm?displaypage=../CamftBenefits/FAQ/faq01.htm
[4] Confidentiality of Mental Health Information: Ethical, Legal, and Policy Issues, Chapter 7, Mental Health: A Report of the Surgeon General, Office of the Surgeon General, United States Department of Health and Human Services, accessed 8/14/07, http://www.surgeongeneral.gov/library/mentalhealth/chapter7/sec1.html., citing B. Sharkin, Strains on confidentiality in college-student psychotherapy: Entangled therapeutic relationships, incidental encounters, and third-party inquiries, 16 Prof. Psychol., Research & Pract., 184–189 (1995).
[5] Ecology, Ethics and Responsibility in Family Therapy, James W. Maddock, Family Relations, Vol. 42, No. 2 (Apr., 1993), pp. 116-123, accessed 8/12/07, http://links.jstor.org/sici?sici=0197-6664(199304)42%3A2%3C116%3AEEARIF%3E2.0.CO%3B2-Q
[6] The American Heritage Dictionary of the English Language, Fourth Edition. Retrieved August 13, 2007, from Dictionary.com website: http://dictionary.reference.com/browse/ethic.
[7] ibid.
[8] Code of Ethical Standards for Marriage and Family Therapists, California Association of Marriage and Family Therapists, May, 2002.
[9] ibid.
[10] ibid.
[11] ibid.
[12] Ethics in Psychotherapy and Counseling: A Practical Guide (3rd edition), Kenneth S. Pope, Ph.D., ABPP and Melba J. T. Vasquez, Ph.D., ABPP, Jossey-Bass Publishers, an imprint of Wiley, 2007.
[13] The American Heritage, New Dictionary of Cultural Literacy, Third Edition, Houghton Mifflin Company, 2005.
[14] The Cambridge Companion to Schopenhauer By Christopher Janaway, Cambridge University Press, 1999, pp. 145. 15. 351.
[15] Ethics and Values in Psychotherapy, Alan C. Tjeltvei t, Routledge; 1 edition (May 5, 1999), p. 1.
[16] Rebirthing therapy called 'torture', Kieran Nicholson, Denver Post Staff Writer, Denver Post Online, Apr. 3, 2001 , accessed 8/13/07, http://extras.denverpost.com/news/news0403i.htm
[17] Videotape, flannel cloth convince jury, Peggy Lowe and Michelle Ames, News Staff Writers, April 20, 2001, accessed 8/13/07, http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_340264,00.html
[18] Therapists Are Sentenced In Girl's 'Rebirthing' Death, Michael Janofsky, New York Times, June 19, 2001, accessed 8/13/07, http://query.nytimes.com/gst/fullpage.html?sec=health&res=9C0DE6D91031F93AA25755C0A9679C8B63
[19] Chaffin M; et al. (Feb 2006). Report of the APSAC Task Force on Attachment Therapy, Reactive Attachment Disorder, and Attachment Problems. Child Maltreatment 11 (1): 76-89. DOI:10.1177/1077559505283699. ISSN 1552-6119, quoted in Attachment Therapy, Wikipedia, accessed 8/13/07, http://en.wikipedia.org/wiki/Attachment_therapy#_note-Chaffin, and Timeline: Techniques blamed for several deaths, Desert Morning News, Nov. 27, 2004, accessed 8/13/08, http://deseretnews.com/dn/view/0,1249,595108152,00.html.
[20] Recovered Memories, Elizabeth F. Loftus, Deborah Davis
Annu. Rev. Clin. Psychol. 2006. 2:469–98, doi: 10.1146/annurev.clinpsy.2.022305.095315, Annual Reviews, 2006.
[21] Jury awards patient $2.6 million; Verdict finds therapist Humenansky liable in repressed-memory trial, Star Tribune, Minneapolis, MN, August 1, 1995, Metro Edition, accessed 8/15/07, in http://www.stopbadtherapy.com/resource/article/diane1.shtml, and Are you suddenly hit with a "Repressed/False Memory" lawsuit?, Eric C. Marine, American Professional Agency, accessed 8/15/07, http://www.americanprofessional.com/risk5.html
[22] Keeping Boundaries: Maintaining Safety and Integrity in the Psychotherapeutic Process By Richard S. Epstein, Published 1994, American Psychiatric Press, Inc., Washington DC., p. 35.
[23] Keeping Boundaries: Maintaining Safety and Integrity in the Psychotherapeutic Process, Richard S. Epstein, 1994, American Psychiatric Press, Inc., Washington DC, p. 92.
[24] An empirical study of countertransference reactions toward patients with personality disorders. Compr Psychiatry. 2007 May-Jun;48(3):225-30. Epub 2007 Mar 29., Rossberg JI, Karterud S, Pedersen G, Friis S., Psychiatric Division, Ullevaal University Hospital, 0407 Oslo, Norway; Institute of Psychiatry, University of Oslo, 0407 Oslo, Norway.
[25] Assessment of therapists' and patients' personality: relationship to therapeutic technique and outcome in brief dynamic psychotherapy. Hersoug AG.m Department of Psychiatry, University of Oslo, Norway, J Pers Assess. 2004 Dec;83(3):191-200.
[26] The Evidence-Based Practice: Methods, Models, and Tools for Mental Health Professionals By Chris E. Stout, Randy A. Hayes, John Wiley and Sons, 2005, pp. 244-245.
[27] Informed Consent (part 1): its origins and development, Legal Basics, Practice Management, 2007, http://clinicallawyer.com/files/2007/05/03/informed-consent-part-1-its-not-just-a-piece-of-paper/
[28] See id., citing C. Dierks, Medical confidentiality and data protection as influenced by modern technology, 12 Medicine & Law 547–551 (1993).
[29] Confidentiality of Mental Health Information: Ethical, Legal, and Policy Issues, Chapter 7, Mental Health: A Report of the Surgeon General. This report may be found on the Web site of the Office of the Surgeon General, United States Department of Health and Human Services, at http://www.surgeongeneral.gov/library/mentalhealth/chapter7/sec1.html, citing B. Sharkin, Strains on confidentiality in college-student psychotherapy: Entangled therapeutic relationships, incidental encounters, and third-party inquiries, 16 Prof. Psychol., Research & Pract., 184–189 (1995).
[30] Confidentiality of Mental Health Information: Ethical, Legal, and Policy Issues, Chapter 7, Mental Health: A Report of the Surgeon General. This report may be found on the Web site of the Office of the Surgeon General, United States Department of Health and Human Services, at http://www.surgeongeneral.gov/library/mentalhealth/chapter7/sec1.html.
[31] See id., citing B. Sharkin, Strains on confidentiality in college-student psychotherapy: Entangled therapeutic relationships, incidental encounters, and third-party inquiries, 16 Prof. Psychol., Research & Pract., 184–189 (1995).
[32] “I Hate It When That Happens..." - Law & Ethics For California Psychologists, Pamela H. Harmell, Ph.D., 2006.
[33] A Guide to Psychotherapy and its Practice: Confidentiality, http://www.guidetopsychology.com/confid.htm
[34] ibid.
[35] Code of Ethical Standards, CAMFT, May, 2002, http://www.camft.org/CamftBenefits/whatiscamft_ethnic1.html#Confidentiality.
[36] ibid.
[37] Code of Ethics, AAMFT, 2002
[38] Health and Safety Code 123111 (a)
[39] Health and Safety Code 123115 (b)
[40] Health and Safety Code 123130 (a)
[41] Health and Safety Code 123149.5 (c)
[42] Health and Safety Code 123145 (a)
[43] Protecting the Privacy of Patients' Health Information, DHHS, 3/12/2007, http://www.hhs.gov/news/facts/privacy2007.html.
[44] Health Care Scene in California, C. Duane Dauner, President and Chief Executive Officer California Healthcare Association, May 10, 2001, http://www.ehcca.com/presentations/casymposium/dauner.pdf.
[45] See Becoming HIPAA Compliant, ACPA, referring to Office of Civil Rights, Department of Health and Human Services, Dec, 2003.
[46] ibid.
[47] See Becoming HIPAA Compliant, ACPA, referring to Psychotherapy Notes and You, Dave Jenson, Staff Attorney, CAMFT HIPAA, The Therapist, January/February 2003.
[48] Protecting the Privacy of Patients' Health Information, HHS, 12/20/2000, http://www.hhs.gov/news/press/2000pres/00fsprivacy.html,
[49] HIPAA Final Privacy Rule, Part IV, Final Regulatory Impact Analysis, HHS, Privacy Issues in Mental Health and Substance Abuse Treatment: Information Sharing Between Providers and Managed Care Organizations: Final Report, Suzanne Felt-Lisk and Jennifer Humensky, For the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, Office of Science Policy by Mathematica Policy Research, Inc. January 17, 2003, http://aspe.hhs.gov/datacncl/reports/MHPrivacy/index.htm.
[50] HIPAA Final Privacy Rule, Part I, HHS, http://www.hhs.gov/ocr/part1.html and HIPAA Final Privacy Rule, Part II, Section-By-Section Description of Rule Provisions, HHS, http://www.hhs.gov/ocr/part2.html.
[51] See Entire section on HIPAA drawn from Becoming HIPAA Compliant, ACPA
[52] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007 regarding training and experience as a prior CEAP.
[53] Must Therapists Respond to Subpoenas? Legal Basics, Clinical Lawyer, March 13, 2007, http://clinicallawyer.com/files/?s=confidentiality&submit=Submit
[54] ibid.
[55] California Evidence Codes 1014 and 1015, and American Association of Family Therapy Code of Ethics, sect. 2.2, July 1, 2001, http://www.aamft.org/resources/LRMPlan/Ethics/ethicscode2001.asp
[56] Pen. Code 11166 (a), 15630 (a)
[57] See Pen. Code 11165
[58] Pen. Code 15610.27
[59] Pen. Code 11164
[60] Pen. Code 11166 (a), 15630 (a)
[61] Child Abuse Protection Handbook, Crime and Violence Prevention Center, California Attorney General’s Office, p. 27, 2006.
[62] Pen. Code 15610.23. (a) (b)
[63] Child Abuse: CA Welf. & Inst. Code § 18951 ff.
[64] CA Welf. & Inst. Code § 15630-15632; § 15610-15610.65; § 15633-15637
[65] AB 525 (Chu) Child Abuse Reporting, Pen. Code 11166.05
[66] Cal. Penal Code § 11166.05
[67] California Business and Professional Code 728 (a)
[68] [64] See Barton E. Bernstein, JD, LMSW, Thomas L. Hartsell, Jr., JD, The Portable Lawyer for Mental Health Professionals: An A-Z Guide to Protecting Your Clients, Your Practice, and Yourself , 2nd Edition, Wiley, 2004, p. 22.
[69] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007, referring to a fact-finding discussion with the BBS on this topic, and Barton E. Bernstein, JD, LMSW, Thomas L. Hartsell, Jr., JD, The Portable Lawyer for Mental Health Professionals: An A-Z Guide to Protecting Your Clients, Your Practice, and Yourself , 2nd Edition, Wiley, 2004, p. 22
[70] ibid, p. 5.
[71] Fees - The Sliding Fee Scale, Richard S. Leslie, J.D., The Bulletin Archive, August 2006, Volume 1
[73] See Confidentiality - Couple Being Treated, Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[74] See Confidentiality - "No Secrets" Policy (Couple Being Treated), Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[75] ibid.
[76] ibid.
[77] ibid.
[78] See Confidentiality - Couple Being Treated, Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[79] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[80] See Confidentiality - Couple Being Treated, Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[81] Bulletin Archive, Confidentiality - Group Therapy, Richard S. Leslie, July 2005, Vol. 1.
[82] Cal . Family Code § 6924(d). (In Gudeman, Minor Consent http://www.youthlaw.org/fileadmin/ncyl/youthlaw/publications/minor_consent/Minor_Consent_Report_Download.pdf.
[83] Minor Consent, Confidentiality, and Child Abuse Reporting in California, Rebecca Gudeman, J.D., M.P.A, 2006, National Center for Youth Law.
[84] See In re Mark L. (2001) 94 Cal. App. 4th 573, and Evid. Code, ' 1013, subds. (a), Evid. Code, ' 1013, subds. (b).
[85] See Eby, David P., The Therapist Client Privilege in Child Custody Disputes: Understanding the Berg Decision, Networker-Newsletter of the NH Psychological Association, January 2006
[86] Cal . Civil Code §§ 56 .10(a), 56 .11(c); Cal . Health & Safety Code §§ 123110(a), 123115(a)(1)
[87] Minor Consent, Confidentiality, and Child Abuse Reporting in California, Rebecca Gudeman, J.D., M.P.A, 2006, National Center for Youth Law.
[88] Cal . Civil Code § 56 .37
[89] Avoiding Liability Bulletin, Termination of Treatment, June 2005
[90] See id.
[91] See Bulletin Archive, Consent to Treat Minor (Sole and Joint Legal Custody), Richard S. Leslie, March 2007, Vol. 1.
[92] See id.
[93] See Avoiding Liability Bulletin, Termination of Treatment, June 2005
[94] See California Family Code section 6924
[72] California Civil Code 56.10
[95] See CA Evidence Code § 1013(c).
[96] See id.
[97] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[98] See Bulletin Archive, Confidentiality - AIDS/HIV, Richard S. Leslie, August 2005, Vol. 1, http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/37/sid/12/Default.aspx.
[99] Bulletin Archive, Confidentiality - AIDS/HIV, Richard S. Leslie, August 2005, Vol. 1, http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/37/sid/12/Default.aspx.
[100] HIV and Health Law: Striking the Balance between Legal Mandates and Medical Ethics, in AMA: Health Law, Laura Lin, MBA, JD, and Bryan A. Liang, MD, PhD, JD, October, 2005.
[101] Misuses and Misunderstandings of Boundary Theory in Clinical and Regulatory Settings, Thomas G. Gutheil, M.D. and Glen O. Gabbard, M.D., Am J Psychiatry 155:409-414, March 1998.
[102] ibid.
[103] Maintaining Treatment Boundaries in Small Communities and Rural Areas, Robert I. Simon, M.D. and Izben C. Williams, M.D., Psychiatr Serv 50:1440-1446, November 1999, American Psychiatric Association.
[104] Bell, A., & Weinberg, M. (1978). Homosexualities: A study of diversity among men and women. New York: Simon & Schuster.
[105] Utilization of psychotherapy by lesbians, gay men, and bisexuals: Findings from a nationwide survey. Jones, M.A., & Gabriel, M.A. (1999). Journal of Orthopsychiatry, 69, 209-219, in LGB Clients and their Therapists: Exploring the Marketplace, Armand R. Cerbone and Kristin A. Hancock, based on a paper presented by Armand R. Cerbone as part of a symposium, R. Dudley-Grant (Chair), Expanding Diversity in Your Practice, conducted at the 112th annual convention of the American Psychological Association, Honolulu, HI, 2004, sponsored by the Division 42 Diversity Task Force. It also appears here, co-authored by Cerbone & Hancock, as the first contribution to Independent Practice of the Division 42 Lesbian, Gay, Bisexual, and Transgender Task Force, accessed 8/12/07, http://www.division42.org/MembersArea/IPfiles/Winter05/practitioner/LGBclients.php
[106] Maintaining Treatment Boundaries in Small Communities and Rural Areas, Robert I. Simon, M.D. and Izben C. Williams, M.D., Psychiatr Serv 50:1440-1446, November 1999, American Psychiatric Association.
[107] California Business and Professional Code 728, and the Civil Code 43.93
[108] California Business and Professional Code 728 (a)
[109] AB 525 (Chu) Child Abuse Reporting, Pen. Code 11166.05.
[110] ibid.
[111] B. Forer, personal communication, November 1984; see also Forer, B. (1980, February) in The therapeutic relationship: 1968, Paper presented at the annual meeting of the California State Psychological Association, Pasadena, in Therapist-Patient Sex as Sex Abuse: Six Scientific, Professional, and Practical Dilemmas in Addressing Victimization and Rehabilitation, Kenneth S. Pope
[112] Sheldon H. Kardener, Marielle Fuller & Ivan N. Mensh, A Survey of Physicians' Attitudes & Practices Regarding Erotic and Nonerotic Contact with Patients AM. J. PSYCHIATRY 1070 (1973).
[113] Gabbard, G. O., Sexual exploitation in professional relationships. Washington, DC: American Psychiatric Press, in Therapist-Patient Sex as Sex Abuse: Six Scientific, Professional, and Practical Dilemmas in Addressing Victimization and Rehabilitation, Kenneth S. Pope, 1989.
[114] 436 S.W.2d 753 (Mo. 1968) in Liability of Physicians, Therapists and
Other Health Professionals for Sexual Misconduct With Patients, Linda Jorgenson and Pamela K. Sutherland. accessed 8/16/07, http://www.advocateweb.org/HOPE/litigation/liability.asp
[115] Campbell M. The oath: An investigation of the injunction prohibiting physician-patient sexual relations. Perspectives Bio Med 1989. Brodsky AM. Sex between patient and therapist: Psychology's data and response. In Gabbard GO (ed.), Sexual Exploitation in Professional Relationships. American Psychiatric Press, Washington DC, 1989.
[116] Kenneth Pope, Therapist-Patient Sex Syndrome: A Guide for Attorneys, in Sexual Exploitation in Professional Relationships, Glen O. Gabbard ed. 1989, and The State Task Force on Sexual Exploitation by Counselors and Therapists, It’s Never O.K.: A Handbook for Professionals on Sexual Exploitation by Counselors and Therapists, Barbara Sanderson ed. 1989, and SCHOENER, supra note 3, at 145, in Litigating Sexual Misconduct Cases -- A Plaintiffs' Attorney's Perspective, Advocate Web, accessed 8/16/07, http://www.advocateweb.org/HOPE/litigation/litigating2.asp#incid.
[117] Nanette Gartrell et al., Reporting Practices of Psychiatrists Who Knew of Sexual Misconduct by Colleagues, 57 AM. J. Orthopsychiatry. 287, 293 (1987).
[118] Shirley Feldman-Summers & Gwendolyn Jones, Psychological Impacts of Sexual Contact Between Therapists or Other Health Care Practitioners and Their Clients, J. Counseling and Clinical Psychology, 1054 (1984), supra note 15, at 1058.
[119] May Physicians Date Their Patients’ Relatives? Medicine and Health, Appel, Jacob M, Rhode Island, May 2004.
[120] Exploitation and Inference: Mapping the Damage From Therapist-Patient Sexual Involvement, Martin H. Williams, Ph.D., Department of Psychiatry, Kaiser-Permanente Medical Center, Santa Clara, California. American Psychologist, 1992, 47 (3), 412-421. http://drmwilliams.com/SAdocs/exploit.html
[121] Adverse Psychological Evaluations in Civil Suits Involving Sexual Misconduct by Professionals, Schoener, and Prevention and intervention in cases of professional misconduct: psychology lags behind. Minnesota Psychologist 1992; 41:3:9-10, in Ralph Underwager, Ph.D. and Hollida Wakefield, M.A, Copyright 1993 American Journal of Forensic Psychology, Volume 11, Issue 4. The Journal is a publication of the American College of Forensic Psychology, P .0. Box 5870, Balboa Island. California 92662.
[122] Brodsky, A. M. (1989). Sex between patient and therapist: Psychology's data and response. In G. O. Gabbard (Ed.), Sexual exploitation in professional relationships (pp. 15-25). Washington, DC: American Psychiatric Press, in Therapist-Patient Sex as Sex Abuse: Six Scientific, Professional, and Practical Dilemmas in Addressing Victimization and Rehabilitation Kenneth S. Pope, http://www.kspope.com/sexiss/therapy1.php.
[123] Personal communication, Amos Martinez, Mental Health Licensing Board, State of Colorado, 1999, with Robert A. Yourell.
[124] ibid.
[125] Professional Therapy Never Includes Sex, State and Consumer Services Agency, California Department of Consumer Affairs, 2004, http://www.psychboard.ca.gov/pubs/proftherapy.pdf.
[126] Back to the Past in California: A Temporary Retreat to a Tarasoff Duty to Warn, Robert Weinstock, MD, Gabor Vari, MD, Gregory B. Leong, MD and J. Arturo Silva, MD, J Am Acad Psychiatry Law 34:4:523-528 (2006)
[127] ibid.
[128] ibid.
[129] Ewing v. Goldstein, 15 Cal Rptr. 3d 864 (Cal. Ct. App. 2004) and Ewing v. Northridge Hospital Medical Center, 16 Cal Rptr. 3d 591 (Cal. Ct. App. 2004)
[130] ibid.
[131] CA Civil Code § 43.92 (a)(b) (2007)
[132] in re Brady v. Hopper, District Court of Colorado, John P. Moore, 1983, http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/civil.htm.
[133] ibid.
[134] Assessing Violence in Patients: Legal Implications, Ben Molbert, M.D., and James C. Beck, M.D., Ph.D., Psychiatric Times, Vol. XX Issue 1, Jan., 2003, referring to White v United States (1986), http://www.psychiatrictimes.com/p030122.html
[135] ibid., referring to Jablonski v United States of America (1983), and Hamman v County of Maricopa (1989).
[136] See id., referring to Lindsey v United States of America (693 F. Supp. 1012 [U.S. Dist. 1988]), http://www.psychiatrictimes.com/violence.html.
[137] Confidentiality - Dangerous Patient?, Richard S. Leslie, J.D., Legal Resources, October 2005 , Volume 1, http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/41/sid/14/Default.aspx
[138] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[139] Law and Ethics, Continuing Psychology Education, p. 7, http://forensicpsychiatry.stanford.edu/Files/ca-lawethics.pdf.
[140] J Child Psychol Psychiatry. 1997 Nov;38(8):965-80. Genetics and developmental psychopathology: The main effects of genes and environment on behavioral problems in the Virginia Twin Study of Adolescent Behavioral Development. Eaves LJ, Silberg JL, Meyer JM, Maes HH, Simonoff E, Pickles A, Rutter M, Neale MC, Reynolds CA, Erikson MT, Heath AC, Loeber R, Truett KR, Hewitt JK. Virginia Commonwealth University, Richmond 23298-0003, USA.
[141] The New Look of Behavioral Genetics in Developmental Psychopathology: Gene–Environment Interplay in Antisocial Behaviors, Terrie E. Moffitt, King’s College London and University of Wisconsin—Madison, Psychological Bulletin, American Psychological Association, 2005, Vol. 131, No. 4, 533–554, and
[142] Arch Gen Psychiatry. 2004 May;61(5):489-96. Conduct problems in children and adolescents: a twin study. Scourfield J, Van den Bree M, Martin N, McGuffin P., Department of Psychological Medicine, University of Wales College of Medicine, Heath Park, Cardiff.
[143] ibid.
[144] Personal communication with Robert A. Yourell, regarding network coordination experience in a managed care firm, 8/14/07
[145] The Business and Professions Code, Section 2290.5 (a) (1)
[146] Telephone administered cognitive behaviour therapy for treatment of obsessive compulsive disorder: randomised controlled non-inferiority trial, BMJ. 2006 Oct 28;333(7574):883. Epub 2006 Aug 25. Lovell K, Cox D, Haddock G, Jones C, Raines D, Garvey R, Roberts C, Hadley S., Department of Nursing, Midwifery, and Social Work, University of Manchester, Manchester M13 9PL. Karina, J Telemed Telecare. 2006;12(6):285-8.
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[149] The utility of videoconferencing to provide innovative delivery of psychological treatment for rural cancer patients: results of a pilot study. Shepherd L, Goldstein D, Whitford H, Thewes B, Brummell V, Hicks M., Department of Medical Oncology, Prince of Wales Hospital, Randwick, New South Wales, Australia.
[150] The Business and Professions Code, Section 2290.5 (a) (1)
[151] The Business and Professions Code, Section 2290.5 (c)
[152] Consumer Information Regarding Online Psychotherapy: Notice to California Consumers Regarding Psychotherapy on the Internet, http://www.bbs.ca.gov/consumer/consumer_psych_online.shtml
[153] The Business and Professions Code, Section 2290.5 (c)
[154] The Business and Professions Code, Section 2290.5 (d) (e)
[155] Litwack TR, Schlesinger, LB: Assessing and predicting violence: research, law and applications, in Handbook of Forensic Psychology. Edited by Weiner IB, Hess AK. New York: John Wiley & Sons, 1987, pp.205-257 in Ralph Underwager, Ph.D. and Hollida Wakefield, M.A, Copyright 1993 American Journal of Forensic Psychology, Volume 11, Issue 4
[156] Monahan J: The prediction of violence, in Psychology and the Law, Vol. 2. Edited by Scheirer CJ, Hammonds BL. Washington DC, American Psychological Association, 1983, pp.147-176
[157] Melton GB, Petrila J, Poythress NG, Slobogin C: Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. New York: Guilford, 1987, and Wyda J, Black B: Psychiatric predictions and the death penalty: an unconstitutional sword for the prosecution but a constitutional shield for the defense. Behavioral Sciences and the Law 1989; 7:4:505-519.
End of text. Now take the course quiz.
